“No Way To Prevent Mass Shootings” Says Only Developed Nation Where Mass Shootings Regularly Occur

Two days ago in Uvalde, Texas, an 18-year-old with an assault weapon shot and killed 19 fourth graders and two of their teachers.

Twelve days ago in Buffalo, New York, an 18-year-old with an assault weapon shot and killed 10 people who were shopping at a market.

Fifteen days ago, the Ninth Circuit decided 2-1 that a California law prohibiting the purchase of assault weapons by people under 18 (with narrow exceptions for specified military and law enforcement personnel) is an unconstitutional invasion of an 18-year-old’s “right” to keep and bear arms and his “right” to defend himself in his home.  The majority opinion in that case, Jones v. Bonta, was written by two Trump-appointed judges.  It is exceptionally stupid and I predict that the Ninth Circuit will vote for a rehearing en banc and reverse the decision.

If you think I’m being too hard on the two Trump judges who constituted the majority in Jones v. Bonta, consider the first sentence of the opinion:    

“America would not exist without the heroism of the young adults who fought and died in our revolutionary army.  Today we reaffirm that our Constitution still protects the right that enabled their sacrifice: the right of young adults to keep and bear arms.”

This sounds like something Otter, who led the walkout from the Delta disciplinary hearing in “Animal House”, might have said.  (I write this confident that all my subscribers have seen “Animal House”.  If you haven’t, you should probably not read any more of my blogs until you have done so.  That goes for “Idiocracy” as well.)

The Jones v. Bonta opinion goes on to explain why an 18-year-old Californian needs an assault weapon for self-defense in his home:

“Even acknowledging that shotguns are effective weapons for self-defense in the home, shotguns are outmatched by semiautomatic rifles in some situations. Semiautomatic rifles are able to defeat modern body armor, have a much longer range than shotguns and are more effective in protecting roaming kids on large homesteads, are much more precise and capable at preventing collateral damage, and are typically easier for small young adults to use and handle.

Thus, we hold that California’s ban is a severe burden on the core Second Amendment right of self-defense in the home.”

The reference to “the home” and the need to protect “roaming kids on large homesteads” is the laughable attempt by these two judges to make possession of an assault weapon by an 18-year-old fit within the narrow ruling of the 2008 case of Heller v. District of Columbia.  In Heller, Justice Scalia, writing for a 5-4 majority, read the introductory language about a “well-regulated Militia” out of the Second Amendment and held that individuals in Washington D.C. have a constitutional right to possess a handgun in the home for self-defense.

The judges who wrote the Jones v. Bonta opinion deserve to be recognized by name.  They are: Ryan D. Nelson (the author) and Kenneth K. Lee.

Review of Jones v. Bonta by a larger group of Ninth Circuit judges may be affected by the Supreme Court’s decision in NY State Rifle & Pistol Ass’n v. Bruen.  That case has been briefed and argued and will be decided within the next five or six weeks.  

Six months ago, I wrote a blog about the likely outcome of that case, based on my review of the oral argument.  See The Oral Arguments In NY State Rifle & Pistol Ass’n v. Bruen Will Not Improve Your Opinion Of The Supreme Court, November 21,2021.  I predicted that the Supreme Court’s decision in Bruen will declare the New York statute on concealed-carry unconstitutional (which will make parts of California’s law on concealed-carry unconstitutional) and expand the right of individuals to carry firearms outside the home.  We’ll see, but I’m pretty sure the Court’s decision in Bruen will exacerbate the problem of gun deaths in America, i.e., result in more of them.

That the number of gun deaths in America has gone from around 30,000 in 2017 to more than 45,000 in 2021 not an American problem.  It is a Republican problem.  

That abortions are about to become illegal in many states is not an American problem.  It is a Republican problem.  

That not all Americans have access to inexpensive or free healthcare is not an American problem.  It is a Republican problem.  

That a free or nearly free college education is not available to all Americans and that a large segment of our population is crushed by $1.8 trillion in education debt is not an American problem.  It is a Republican problem.  

That the inequality of wealth is greater in America than in any other developed country is not an American problem.  It is a Republican problem.  

The title of this blog is the title of an article yesterday in The Onion.  It is also the title of a blog I wrote nearly five years ago, which I encourage you to read.  It is appended below.  In 2017 it was a paraphrase of the title of an even earlier Onion article. Unless the United States comes to its senses and elects a Democratic House and more than 60 Democratic senators, it will be the title of an Onion article years from now.  And the other Republican problems listed above will likewise remain unaddressed.

Save America.  Vote Democratic. 

No Way To Prevent Mass Shootings” Says Only Developed Nation Where Mass Shootings Regularly Occur

I adapted the title of this blog from a recent headline in The Onion, which is a satirical publication. In this case, its satire is based on a kind of gallows humor, since The Onion headline is absolutely true.

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October 11, 2017

More than 30,000 Americans are killed by guns each year. Since 2000, there have been more than 500,000 gun deaths in America. Roughly 1/3 of these were homicides and 2/3 were suicides. That is 100,000 more Americans than were killed in all of WW II and nearly 10 times the number of Americans killed in the Vietnam War.  More Americans are killed by guns every two years than were killed in Vietnam.

Gun deaths in America occur at 10 times the rate in Germany, 40 times the rate in the U.K., and more than 150 times the rate in Japan. In fact, in 2015, Japan – a nation of 120 million people – had one gun homicide. That’s right. One. A U.S. male between the ages of 15 and 24 is 70 times more likely to be killed by a gun than their counterparts in the UK, France, Germany, Italy, Russia, Canada and Japan.

When advocates of unrestricted gun ownership, like the NRA, argue that gun laws – virtually any gun laws – do no good and “infringe” on their constitutional rights, they are simply wrong.

Laws Regulating Guns And Gun Ownership Would Reduce Gun Deaths

All of the countries referred to above have laws regulating and restricting the use and ownership of guns to a far greater degree than the U.S. The country-comparison statistics speak for themselves.

Domestically, the statistics are irrefutable that the more guns in a state, the higher the rate of gun-related deaths in that state. Similarly, the statistics are irrefutable that states with more restrictive gun ownership regulations have fewer gun-related deaths. The six states with the highest incidence of gun-related deaths (Arkansas, Louisiana, Mississippi, Alabama, Arizona and Wyoming) conduct no background checks, nor do they require a permit or license to own a gun or to be able to “open carry”. They all have “stand your ground” laws. The six states with the lowest incidence of gun-related deaths – Hawaii, Massachusetts, New York, Connecticut, Rhode Island and New Jersey (1/4 to 1/8 that of the six worst states) – require background checks and licenses, do not have “stand your ground” laws, and make obtaining an “open carry” permit difficult or impossible.

I gasped this past Sunday morning when I heard Senator Dianne Feinstein – an advocate of reasonable gun regulation – answer: “No” to the question of whether any gun regulations could have prevented the Las Vegas massacre. Either she misunderstood the question, or she should retire, because she flubbed the perfect opportunity to make the brief for regulations that would have stopped the Las Vegas shooter.

Consider the consequences on gun-related deaths in America if the following regulations, all adamantly opposed by the NRA, had been in effect nationally for the past 15 years:

• Universal background checks for gun buyers
• Universal background checks for ammunition buyers
• A limit on the number of guns and the amount of ammunition a single person may purchase or possess
• A centralized record of gun sales and a national gun registry
• A ban on sales to or possession of guns by the mentally ill
• A ban on sales to or possession of guns by anyone with a history of domestic violence
• A ban on sales to or possession of guns by anyone determined to be (or have been) a violent criminal or gang member
• A ban on the possession or sale of military-style firearms
• A ban on the possession or sale of devices like the “bump-stocks” used by the Las Vegas shooter
• A ban on the possession or sale of high-capacity magazines
• A requirement that the purchaser of a gun be licensed and have demonstrated the ability to use the gun safely
• A requirement that gun owners own and use a gun safe
• A requirement that lost or stolen guns be reported
• A ban on carrying a gun outside the home unless a permit to do so – which should rarely be issued – is obtained after demonstrating a need
• A ban on guns in the workplace, in schools, bars and restaurants, and in other designated public places
• A “buyback” program, like the one that was instituted in Australia in 1997

None Of The Regulations Suggested Above Would Infringe Any Right Protected By The Second Amendment

Although most of the regulations listed above could not be implemented for political reasons, given the extremist views and clout of the NRA, there is no “constitutional” right that would prevent them from being implemented. It drives me nuts to hear the interlocutors of the Sunday morning talk shows and cable TV news show “panel discussions” refer to NRA spokespeople and other advocates of unrestricted gun ownership as “supporters of the Second Amendment” or “gun rights advocates.” They are neither. They should be introduced as “opponents of sensible gun regulation.” When they demur to this characterization, they should be asked to identify three or four – or one – sensible gun regulation they support.

Even worse is to hear the interlocutors declare – inaccurately – that the Supreme Court has decided that individuals have the right to possess and carry guns, implying that the Court has not only found this “right” in the language of the Second Amendment, but has decided that this “right” cannot be restricted or regulated.

Even under the tortured construction given it by Justice Scalia and the four other conservative ideologues in the majority in Heller v. District of Columbia, the Second Amendment does not give anyone the “right” to possess automatic or semi-automatic weapons, high-capacity magazines, or “bump-stocks”. There is no Second Amendment “right” to be free from licensing and registration requirements, to possess unlimited numbers of firearms, to purchase unlimited quantities of ammunition, or to acquire firearms from private sellers or at gun shows without a background check. The so-called “gun rights” advocates’ reading of the Second Amendment is a perversion of its language and meaning and their ruthless and obstructionist political tactics make them complicit in the deaths of thousands of Americans every year.

The text of the Second Amendment is brief. It provides:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

For more than 200 years, up until the Supreme Court’s decision in Heller in 2008, it had been the law in America that legislatures could regulate the civilian use and misuse of firearms so long as the regulations did not interfere with the preservation of a well-regulated militia. The Second Amendment was understood to give states the right to maintain and regulate a militia; nothing in the Second Amendment was intended to give rights to individual civilians.

Then, in Heller v. District of Columbia, a 5-4 decision by Scalia, joined in by four other justices, the first phrase of the Second Amendment was rendered meaningless – a departure from so-called “strict construction” that exposed Scalia and the other “strict constructionists” phonies – and it was held for the first time that the Second Amendment gives an individual the right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. And even the majority in Heller acknowledges that this limited individual right is subject to reasonable regulation.

I believe each of the regulations listed above could qualify as constitutional. Obviously, this would depend on the composition of the Supreme Court, so it is important that the next Supreme Court vacancy not be filled with a Scalia clone like Neil Gorsuch.

As Justice Stevens explained In his dissenting opinion in Heller, the Scalia reading of the Second Amendment is not supported by its language or its history. It is beyond the scope of this blog to discuss the competing arguments – my blogs tend to be too long as it is – but I will point out that James Madison, the author of the Second Amendment, made a decision NOT to include individual gun rights in the draft he submitted to the Constitutional Convention. (Some states did provide for individual rights in drafts they submitted to James Madison to influence him and assist him in his work.)

Madison’s original draft stated:

“The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

 This proposal was based on Virginia’s military proposal and it is clear that Madison – and those who voted for the final, briefer version we have today – considered and rejected formulations that would have unambiguously protected civilian uses of firearms. As one commentator, Garry Wills, observed, the “right to keep and bear arms” was always considered a military concept. One does not need to “bear arms” to hunt a rabbit.

Sensible gun regulations would dramatically reduce the number of gun deaths in America and would not infringe on any rights under the Second Amendment. We need to start electing representatives who will vote for sensible regulations. Enough is enough.

Will The Supreme Court Take On Same-Sex Marriage Next?

There has been a lot of commentary recently on whether, assuming Justice Alito’s leaked opinion in Dobbs becomes the opinion of the Court, the next target of the Religious Right will be the Court’s 2015 decision in Obergefell v. Hodges recognizing the right of same-sex people to marry.  Justice Alito attempted to head off such speculation by stating in his draft opinion in Dobbs:

“And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right.  Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

But should we trust Justice Alito and his colleagues?  Here is what Alito said seven years ago in his dissent in Obergefell, a 5-4 decision:

 “The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right. . . .

To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “‘deeply rooted in this Nation’s history and tradition.’” [citation omitted]  And it is beyond dispute that the right to same-sex marriage is not among those rights. . . 

[I]f the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right.  But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny.  Any change on a question so fundamental should be made by the people through their elected officials.” 

That sounds an awful lot like his rationale for overturning Roe v. Wade.

And here is what Alito said just two years ago, when he joined in Justice Thomas’s opinion not to grant certiorari in the case of Kim Davis, the county clerk who refused to issue a marriage license to a gay couple after the Supreme Court’s decision in Obergefell.

“This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them. For that reason, I concur in the denial of certiorari. Nevertheless, this petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.”

I think it’s fair to say that Alito is not a fan of Obergefell.

There is little doubt that Justice Thomas would vote to overturn Obergefell if given the chance.  He wrote his own angry dissent there, joined in Scalia’s sarcastic and mean-spirited dissent, and wrote the opinion in the Kim Davis case, referred to above.

Chief Justice Roberts also dissented in Obergefell.  Although he acknowledged that marriage is a fundamental right and that states must apply their marriage laws equally, he went on to say that such equal application can only apply to a union of a man and a woman because the institution of marriage “arose in the nature of things” to support procreation and the raising of children. He stated that: “The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. . . . Therefore, for the good of the children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.”

In the same vein, Roberts argued that “the marriage laws at issue here [prohibiting same-sex marriage] do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.”

In other words, Roberts’ dissent in Obergefell was based on the circular argument that same-sex couples do not have a right to participate in the institution of marriage because historically they have not done so. Nevertheless, in 2017 Roberts reaffirmed Obergefell’s holding that same-sex couples must enjoy the exact same marital rights as opposite-sex couples in the case of Pavan v. Smith. 

Scalia, the fourth dissenter in Obergefell, is dead, God rest his soul. 

To bring the issue of same-sex marriage before the Supreme Court to reverse Obergefell, there would first have to be state action rejecting the right of gays to marry.  This could take the form of a state statute passed by a hard-core “red” state, which a federal district court would have to declare unconstitutional because of the controlling precedent of Obergefell.  The Court of Appeal would then be required to affirm the District Court and the losing party would have to seek review in the Supreme Court via a writ of certiorari.  If four justices were to vote to grant certiorari, the case would then be briefed, argued, and decided by the entire Court.  This process could take a while.

Are there four justices who would vote to grant certiorari in a case challenging the constitutionality of Obergefell?  Who knows.  I have no doubt that Thomas would vote to take the case.  Given his statement in Dobbs that it has no effect on precedents that do not concern abortion, Alito might find it hard to vote to grant certiorari, but given the hostility he has expressed towards Obergefell, he could probably find a way.  

So how would Gorsuch, Kavanaugh, Barrett and Roberts vote?

I’m guessing Roberts would not vote to take the case.  Overturning Obergefell would be unpopular and bring the Court into further disrepute. 

As for Gorsuch, in his 2004 doctoral dissertation, written while he was at Oxford, Gorsuch said he thought it obvious that the United States Constitution did not protect a right to same-sex marriage.  That, of course, was 11 years before the decision in Obergefell.  But then he joined with Thomas and Alito in their dissent in Pavan v. Smith.

Justice Kavanaugh dodged questions about same-sex marriage at his confirmation hearing.  Once on the Court, he dissented from the Court’s decision in Bostock v. Clayton County (2020), which held that existing civil rights laws prohibit discrimination against LGBTQ employees, but he concluded his Bostock dissent by declaring his respect for the “extraordinary vision, tenacity, and grit” of “gay and lesbian Americans” who’ve “worked hard for many decades to achieve equal treatment in fact and in law.” 

Some years ago, Justice Barrett signed a letter that stated:

 “We give witness that the Church’s teachings… on the meaning of human sexuality, the significance of sexual difference and the complementarity of men and women…and on marriage and family founded on the indissoluble commitment of a man and a woman. . .”

During her confirmation hearing, she denied that Obergefell was a precedent that could not be overruled.  She also stated in that hearing that Justice Scalia’s jurisprudence was her jurisprudence and we know that Scalia was vehemently opposed to gay marriage.  Barrett was also a board member of a People of Praise-sponsored school that denied admission to children of same-sex couples.

If they join in Alito’s draft in Dobbs, as they reportedly intend to do, Gorsuch, Kavanaugh and Barrett might feel constrained by the statement that nothing decided in Dobbs casts doubt on any other precedent that doesn’t involve abortion.  But it is also pretty clear that none of them would have voted with the majority in Obergefell v. Hodges.  I suspect, however, that if they – and Roberts – were to vote against granting certiorari in a case seeking to overturn Obergefell, it would be because they are aware that same-sex marriage has broad public support and that hundreds of thousands of Americans have relied on the right recognized in Obergefell.  And there’s that thing about declining respect for the Court.

Bottom line, I don’t think the Court will take away the right of gays to marry – at least not any time soon.  I hope I’m right.  But the new ruling bloc on the Supreme Court is very, very, very religious, and if God says …

Is There A Bright Side To The Demise Of Roe v. Wade? Hard To Find It, But Maybe

That it was leaked is shocking and unprecedented, but the content of Justice Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health, overruling Roe v. Wade and Planned Parenthood v. Casey, should not have surprised anyone who follows the Court. Justices Thomas and Alito had made no secret of their desire to overrule Roe and Casey and Trump promised to nominate justices who would do just that. And he did. Gorsuch, Kavanaugh and Amy Coney Barrett were thoroughly vetted by the Federalist Society and their commitment to overrule Roe had been confirmed.  Notwithstanding their mealy-mouthed testimony during their confirmation hearings – none of them explicitly promised to overturn Roe if given the opportunity – they were champing at the bit to do what was expected of them. Amy Coney Barrett, for example, had signed a letter in 2006 that characterized Roe as “an exercise of raw judicial power” that allowed the government to sanction the “barbaric” act of abortion. She had made it clear that she did not consider Roe to be a precedent like Brown v. Board of Education that was sacrosanct. Their questions and comments during the Dobbs oral argument strongly suggested they were prepared to overrule Roe. Their willingness to jettison 50 years of precedent was so obvious that Justice Sotomayor was prompted to ask:

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

Just so each of you has the background in mind, as 1972 drew to a close, only four states gave a woman the right to end an early term pregnancy. Several other states allowed termination of a pregnancy if necessary to protect the health or safety of the mother. Otherwise, abortion was illegal throughout the nation.

In January 1973*, the Supreme Court held in Roe v. Wade that the Due Process Clause of the Fourteenth Amendment provides a “right to privacy” that protects a pregnant woman’s right to choose whether to have an abortion.  It ruled, however, that this right is not absolute and must be balanced against a state’s interest in protecting both the women’s health and the life of the unborn. The Court resolved this balancing test by tying state regulation of abortion to the three trimesters of pregnancy: During the first trimester, governments could not prohibit abortions at all; During the second trimester, governments could impose reasonable health regulations; During the third trimester, abortions could be prohibited entirely so long as the laws contained exceptions for cases where abortion was necessary to save the life or preserve the health of the mother.  

Planned Parenthood v. Casey, decided in 1992, modified Roe by holding that: (1) Women have the right to choose to have an abortion prior to viability without undue interference from the State; (2) the State can restrict abortions post-viability, so long as the law contains exceptions for pregnancies which endanger the woman’s life or health; and (3) the State has legitimate interests from the outset of pregnancy in protecting both the health of the woman and the life of the fetus that may become a child. Casey thus overruled the “sacrosanct” nature of a woman’s right to an abortion during the first trimester.  

Since Roe, around 22 states – nearly all in the Far West and Northeast – have passed legislation protecting the right to abortion. By contrast, several “red” states have passed legislation imposing so many restrictions on the right to an abortion that, as a practical matter, it is only available to their wealthiest citizens.  Nevertheless, until now, Roe and Casey still guaranteed the “right” to an abortion, however ephemeral that right was in several “red” states.

If the opinion drafted by Justice Alito in Dobbs were to be adopted by the majority, it would put an end to this skirmishing by returning to each state the right to decide whether or not its female citizens could get an abortion and under what terms. Thirteen states – anticipating the overruling of Roe and Casey – have already passed legislation banning abortion, to take effect immediately.  Another 14 or 15 states have plans to ban abortion before fetal viability. In many of these states, the ban is or will be absolute, allowing no exception for rape, incest, or, in a few cases, even the health of the mother.

This sounds pretty horrible, but the expected decision may have a bright side.  

1. By being reminded so dramatically that elections have consequences, Democrats and apolitical young and moderate Americans may be motivated to vote in greater numbers. The immediate outcry inspired by the leak of Alito’s opinion suggests this as a possibility. Imagine, by contrast, if Chief Justice Roberts had been (or is) able to persuade Kavanaugh or Barrett to join him in some “middle ground” that theoretically leaves Roe and Casey in place but cuts back the real-world ability to obtain an abortion even further. The headlines would be something along the lines “Supreme Court Decides Not To Overrule Roe v. Wade”, and the ability of women – especially poor women – to get an abortion throughout much of America would be further circumscribed without much public outcry.

Since the Supreme Court gutted the Voting Rights Act in Shelby County v. Holder, “red” state legislatures have passed an avalanche of voter suppression acts designed to keep typically Democratic constituencies from being able to vote. Unlike the overruling of Roe and Casey, these laws have slipped under the average voter’s radar. Maybe now some previously unengaged voters will – finally – realize that if they want elected representatives who will look out for their interests, they must get off their butts and vote!

2. Will the Dobbs decision raise the question of whether it has been wise to confirm the appointment of seven Catholics to the Court, at least five of whom are religious fanatics? There, I said it – the “C” word, which I have not heard or read in any of the coverage of Alito’s draft opinion.  I know. I know. No religious test may be imposed, etc., etc., and I’m aware that the Religious Right went batshit when Senator Feinstein questioned Amy Coney Barrett about her membership in a Catholic cult during her confirmation hearing for a position on the Court of Appeal. But four of the five justices behind this impending ruling – Alito, Thomas, Kavanaugh and Barrett are not just Catholics. They are dogmatic Catholics. They were educated in Catholic schools and groomed – to use a word beloved by the Right these days – for this moment. (The fifth vote, Gorsuch, became an Episcopalian at some point, but he was raised by a Catholic fanatic and educated at the same school for young D.C. Catholic elites as Brett Kavanaugh.)** Amy Coney Barrett is a member of a Catholic cult – People of Praise – who speak in tongues, believe in divine prophecy, engage in divine healings, and call their female members “handmaidens”. See my September 29, 2020 post: ACB Is No RBG.

Before you excoriate me for being anti-Catholic and ignoring the “no religious test” clause of the Constitution, imagine if seven Muslims were appointed and confirmed to the Supreme Court, five of whom support Shariah Law. It is ridiculous to pretend that the religious beliefs of members of the Court are irrelevant to their suitability for a lifetime appointment to the Court. Amy Coney Barrett herself acknowledged that justices’ religious beliefs inevitably influence their decisions and that has definitely been true of the opinions of justices Scalia, Kennedy, Roberts, Alito and Thomas.  Gorsuch, Kavanaugh and Barrett will be worse than most of them.

3. A reversal of Roe and Casey would shine a needed spotlight on the corrupt partisanship of this Court and could provide the impetus for reform. Term limits? A larger Court? The public’s “approval” of the Supreme Court has declined by 15 points in the past three years, but is still in the mid-50’s. This Court doesn’t deserve even that diminished rating.  Since Scalia joined the Court, it has been dominated by Catholic conservatives who have issued one politically partisan 5-4 decision after another. The most notorious of these have been Heller (reading the introductory passage out of the Second Amendment so as to give individual citizens the constitutional “right” to keep and bear arms), Citizens United (effectively eliminating limits on private and corporate political contributions), Shelby County v. Holder (declaring unconstitutional essential provisions of the Voting Rights Act), Hobby Lobby (declaring that corporations can hold religious beliefs that must be honored even if they deprive citizens of other rights), and Rucho (giving the green light to overtly political gerrymandering.)   

The conservative justices of the Court know they are viewed by many Americans as result-oriented. Within the past year, several of them have given public speeches attempting to persuade a disbelieving public that they are not “political hacks”. But people who follow the Court closely know they are peddling a lie. The conservative bloc of the Court is comprised of political hacks.  See “The Lie About The Supreme Court Everyone Pretends To Believe”, https://www.theatlantic.com/ideas/archive/2021/09/lie-about-supreme-court-everyone-pretends-believe/620198/

Is it wrong to point out that by its actions the Court has tarnished its reputation and is not deserving of respect? I don’t think so. When the Court does not deserve to be respected, the reasons it is undeserving should be discussed openly. I suspect all of this is particularly painful to Chief Justice Roberts. For the last 70 years or so, the name of each Chief Justice has been used as the descriptor of the body of decisions rendered during his tenure, e.g., “the Warren Court”.  (In years long past, a Court would more likely be known by a particularly egregious decision it rendered, such as the Dred Scott court or the Plessy v. Ferguson court.) Whether he likes it or not, this has been and is “the Roberts Court”, and it will be viewed by history as a trainwreck for America.  Moreover, with the addition of Trump’s nominees, Roberts has lost control of the court that bears his name.

I suspect he is furious that he can no longer shape the decisions of a five justice majority; there are now five conservative extremists on the Court who can do whatever they want, irrespective of Roberts’ views. I suspect he is also furious at Alito and furious at the leaker, whoever he or she turns out to be. I suspect he is furious at Justice Thomas for having an extremist political activist (and nutcase) for a wife. 

I suspect Roberts is also unhappy with how the leak of Alito’s draft opinion in Dobbs will affect perceptions of the Court’s work during the remainder of this Term.  The Court has teed up for decision during the next two months several potentially controversial issues, Dobbs being the most high-profile.  Here are some of them: 

Carson v. Makin

A case in which the Court will decide whether a state law prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction violates the Religion Clauses or Equal Protection Clause of the Constitution.

Department of Homeland Security v. New York

A case in which the Court will consider a challenge to the “public charge” rule of the Immigration and Nationality Act, which prohibits noncitizens from receiving a green card if the government believes they are likely to become reliant on government assistance.

Kennedy v. Bremerton School District 

A case which will consider whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it.

National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration

A case in which the Court blocked the Occupational Safety & Health Administration’s challenged rule mandating that employers with at least 100 employees require covered workers to receive a COVID–19 vaccine or else wear a mask and be subject to weekly testing.

New York State Rifle & Pistol Association Inc. v. Bruen

A case in which the Court will decide whether New York’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.

Vega v. Tekoh

A case in which the Court will decide whether a plaintiff may state a claim for relief against a law enforcement officer under 42 U.S.C. § 1983 based on the officer’s failure to provide Miranda warnings.

West Virginia v. Environmental Protection Agency

A case in which the Court will consider whether the Environmental Protection Agency has the authority to regulate greenhouse gas emissions in virtually any industry, so long as it considers cost, non-air impacts, and energy requirements.

I suspect most of the subscribers to this blog will not be happy with the decisions in most of these cases. I suspect Roberts had in mind a sequence for announcing them that would end with Dobbs at the end of June or beginning of July, followed by “see you in October” and a quick departure from Washington D.C. Now an aroused public will be scrutinizing the Court’s opinions over the next two months much more carefully.

I think I’ll stop here and leave you with this message: It’s time to throw the rascals out!  Vote Democratic in November!

__________________________

*To provide additional perspective respecting the benighted state of the union in 1973, this was the same year the American Psychiatric Association decided that homosexuality was not a mental illness. In 1973 sodomy was a criminal offense in 42 states. We’ve made some advances as a society, despite the efforts of the Far Right.

** Justice Sotomayor is a moderate Catholic whose jurisprudence does not seem to be influenced by her religious beliefs. Chief Justice Roberts is staunch Catholic, whose opinions are influenced by his religious beliefs. See, for example, his dissent in Obergefell.

The Oral Arguments In NY State Rifle & Pistol Ass’n v. Bruen Will Not Improve Your Opinion Of The Supreme Court

At issue in NY State Rifle & Pistol Ass’n v. Bruen is the constitutionality of a New York state law that prohibits the carry of a concealed firearm outside the home without first getting a permit.  (New York prohibits open-carry outside the home.)  Concealed firearm permits are granted by city, county, and state officials upon a showing of good cause.

I read the arguments before the Supreme Court very quickly.  I didn’t read any of the briefs or the opinion below.  Nevertheless, I had two fairly strong reactions to what I read:

Justice Breyer Should Retire As Soon As Possible        

All of the other justices, including Justice Thomas, posed coherent questions that seemed to have a point.  By contrast, here is an example of Justice Breyer’s questions:                

JUSTICE BREYER: [In response to the opening argument of the individuals challenging the law] “Well, I have two — two questions. One — one is on history. I mean, it’s law office history. In McDonald, we had professors of history ran departments in the English Civil War and they all said the history in Heller was wrong.  You’ve read the briefs here. I don’t know. You read the briefs of the historian of the Air Force, and she says it’s this way and the other ones say it’s the other way. How are we supposed to deal with that?  There’s a good case — this is a wonderful case for showing both sides. So I’m not sure how to deal with the history.  And my other question is I’m not sure what New York does. We’re talking here about outside New York City. New York says we have about 90,000 licenses to carry concealed weapons or maybe it’s 40,000 or maybe it’s 10,000. But there’s been no trial. There’s been no proceeding. All it is is dismissed law in the — so — so — so how are we supposed to find out, A, what the history is, which is my minor question, really — there’s a lot of debate on that — but, second, how are we supposed to know what we’re talking about in terms of what New York does since they say they give thou — including to one of your clients, they give a license to carry a concealed weapon? So there are concealed weapon licenses all over the  place.  So — so what are we supposed to do about those two things?”
 

In two egregious decisions I will mention later, Shelby County v. Holder and Rucho v. Common Cause, the majority opinions were written by Chief Justice Roberts.  Both decisions were 5-4.  Justice Ruth Bader Ginsberg was in the minority in both.  RBG had the opportunity to retire during the Obama presidency and have her spot filled by a President Obama nominee.  (Justice Kennedy retired during the Trump presidency so his seat could be filled by his protégé, Brett Kavanaugh.)  But despite her physical frailty, her mind was razor-sharp and RBG chose not to retire.  (Her dissent in Shelby was terrific, comparing Roberts’ argument for jettisoning the Voting Rights Act because it was working to “throwing away your umbrella in a rainstorm because you are not getting wet.”)   But the Notorious RBG had the bad judgment to die just before the end of the Trump Administration.  While her body was still warm, Trump nominated Amy Coney Barrett, and Mitch McConnell rushed her confirmation through the Senate just in time for a Covid super-spreader ceremony in the Rose Garden.  Donald Trump had placed his third justice on the Supreme Court in just four years.  ACB will likely sit on the Court for the next 30 to 40 years, alongside those titans of jurisprudence, Neil Gorsuch and Brett Kavanaugh.  What used to be 5-4 decisions, with at least the possibility of persuading one conservative justice to swing the other way – as was sometimes the case with Justice Kennedy – will now routinely become 6-3 decisions.      

Justice Stephen Breyer is 83 years old and starting to fade mentally.  It’s not just his performance in the Bruen case that leads one to this conclusion.  Any objective person watching interviews of him during his recent book tour would agree.  He is in his dotage.  He could retire now and be replaced by a Biden appointee who would be confirmed by the razor thin majority the Democrats now hold in the Senate.  Were Justice Breyer to hang on, however, as he apparently plans to do, and die or become incapacitated after the 2022 midterms, his replacement could be subject to the “advice and consent” of a Senate controlled by Mitch McConnell – if Senator McConnell would even deign to give President Biden’s nominee a hearing.      

And if Justice Breyer hangs on beyond 2024, a vacancy created by his death or incapacity might be filled by the nominee of our 46th president – God forbid – Donald J. Trump.  Justice Jeanine Pirro perhaps?  Or Justice John Eastman?

The Court Will Probably Decide That The New York Law Is Unconstitutional, But The Opinion(s) Of The Court Will Be A Mess  

A majority of the Court appears to equate the right of self-defense to the right to keep and bear arms, as defined by Scalia in the Heller case, and therefore elevates it to constitutional status.  It then proceeds to conclude that the newly minted constitutional right of self-defense entitles every citizen to bear arms, either openly or concealed.  How else can one exercise his constitutional right of self-defense?  That being the case, so the majority’s reasoning seems to go, any limitation on the right to carry an open or concealed weapon must be clearly, but narrowly, defined and strongly justified.  

Much of the oral argument was thus devoted to discussing the difficulty of establishing clear, but narrow, standards of universal application that will determine how, when and where the right to carry a firearm for self-defense may be limited.  Much of that colloquy is laughable – old men, living privileged lives, guarded night and day, speculating on how to balance the need of a late-night subway rider or a member of the crowd at a NY Giants football game to carry a concealed firearm for self-defense against the dangers of a society where everyone one encounters may be packing heat.  One can’t help thinking that their efforts to imagine the circumstances where a citizen might need a concealed firearm for self-defense is heavily influenced by the TV shows they watch.      

I hope I’m wrong, but my prediction is that the conservatives on the Court will find the New York statute to be an unconstitutional infringement of the right of self-defense and will come up with a Frankensteinian opinion that attempts to establish principles of general application – and which becomes the object of ridicule.  As Judge Michael Luttig puts it, will the Court establish itself as “essentially a National Review Board for Public-Carry Regulations”?  It may try to avoid this, but it will probably fail.  Chief Justice Roberts will make sure he is with the majority so he can assign responsibility for writing the opinion, which he will either give to himself or assign to Amy Coney Barrett.  I’m guessing he will let her have a swing at this thankless task; it will be her debut onto the big stage.  (He would never give Justice Thomas or Justice Alito the responsibility for writing the opinion of the Court in this case.)  I predict several concurring and dissenting opinions.      

The sensible resolution of this case, of course, would be to find the New York statute constitutional and declare that each state is free to establish its own rules respecting open and concealed carry.  This is what 200 years of history of firearm regulation in America would dictate and what the rationales of Rucho and Shelby County would require.        

Rucho is the case, you may recall, where Chief Justice Roberts opined for the Court that politically partisan gerrymandering could not be regulated because no standard could be devised that was grounded in a “limited and precise rationale” that was also “clear, manageable, and politically neutral.”  (Of course, as predicted, Republicans have exploited this Court-approved corruption of the election process to engage in the most extreme politically partisan gerrymandering imaginable.)  It was also Chief Justice Roberts who decided in Shelby County v. Holder that the Voting Rights Act was unconstitutional.  To reach this conclusion, he invoked the “fundamental principle” of the equal sovereignty of each state, which retains to itself all rights not expressly reserved to the federal government.  This, according to the Chief Justice, argues strongly against the constitutionality of a statute that suspends “all changes to state election law – however innocuous – until they have been precleared by federal authorities in Washington, D. C.”  The terrible decision in Shelby County immediately produced the passage by Red state legislatures of hundreds of statutes designed to suppress the votes of traditionally Democratic voters.      

But intellectual principle and consistency have never stopped the conservative bloc on the Court from reaching its desired result.  (Heller, for example, was an intellectually dishonest and result-oriented opinion that required Scalia to abandon his proclaimed adherence to the language of the constitutional provision being construed; Scalia simply dismissed as meaningless the language “A well regulated Militia, being necessary to the security of a free State,” to overturn 200 years of settled law.)       

The principles stated in Shelby County and Rucho will likely be ignored or distinguished and states like California – that have firearm laws like New York’s – will have to jump through whatever hoops the Court comes up with to protect its citizens from the dystopian vision of Justices Thomas, Alito, et al. 

Is Amy Coney Barrett Really “Brilliant”?

I didn’t watch all of the Amy Coney Barrett hearings before the Judiciary Committee, but I saw enough to make me question whether she is as “brilliant” as every Republican senator insists she is, and conclude that she is most definitely not the “most qualified” nominee, ever, to appear before the Judiciary Committee.        

She has been something of a religious fanatic her entire life, went to a small liberal arts college in Memphis no one has ever heard of, and attended law school at Notre Dame.  Yes, she finished first in her law school class, but that’s not like finishing first in your class at Harvard Law.  And while doing well at a second tier law school demonstrates that one is smart and a good student, it doesn’t necessarily mean one is “brilliant”.      

Early on, ACB was identified by the Federalist Society as the fair-haired child, someone who could be groomed for a spot on the federal bench and counted on to follow and expand upon the reactionary and religiously extreme views of Anton Scalia.  The Federalist Society and the conservative powers-that-be greased her path to prestigious clerkships with Judge Silberman and Justice Scalia, two of the most conservative members of the federal bench.  After a couple of years at a conservative law firm, where she worked alongside John Roberts and Brett Kavanaugh on Bush v. Gore, she was back to Notre Dame as a professor.        

As I listened to ACB describe her devotion to “originalism”, an intellectually bankrupt pseudo-philosophy, and deny having knowledge of or opinions about climate change, I began to wonder whether this “brilliant” woman is even well-informed.  She declined to answer questions about the power of the president, claiming that she might be called upon to decide whether the president might unilaterally delay the election or refuse to leave office if he loses.  She did attempt to name the five freedoms guaranteed by the First Amendment – and failed.  (She couldn’t remember the right to petition the government for redress.)        

She seemed mechanically wedded to the doctrine of “originalism”.  I don’t think I ever heard her say she would use common sense, consider fairness, or take into account the impact on our democracy or our society, when deciding a case.  She seemed robotic.      

It occurred to me that she may have lived in a bubble her entire life, one dominated by extreme religiosity and limited by the frequently esoteric concerns of legal academia.  I did not see any mention of her having counseled a client or argued a case in the extensive accounts of her qualifications for the bench.  And given the demands of the People of Praise and the size of her family, including a special needs child, she simply may not have had the time – or the interest – to learn much about the world.      

The contrast between her and the great Justice she is replacing, Ruth Bader Ginsburg, who had earned justifiable fame in the real world as a fierce advocate for equal rights before taking a seat on the Supreme Court, could not be more striking.      

I recommend two short articles that state some of my concerns about ACB as a Justice of the Court better than I can.  The first is by Amy Davidson Sorkin in The New Yorker.  The second is by Erwin Chemerinsky, Dean of the Berkeley School of Law, on the intellectual weakness of the judicial philosophy of “originalism”.       

Brett The Brat Should Never Sit On The Supreme Court

Many people who watched the Kavanaugh Hearing have been groping for a way to reconcile Dr. Blasey Ford’s moving, credible account of an event that occurred on a summer evening in 1982, and Brett Kavanaugh’s vehement denial that he ever assaulted 15 year old Chrissie Blasey (or anyone else, for that matter.) Dr. Ford is “100% certain” that she was assaulted by Brett Kavanaugh. He denies denies the accusation. Is there anyway to reconcile their testimony without making one of them a liar?

Some – Judge Kavanaugh, for example – have tried to reconcile the accounts by suggesting that Chrissie Blasey was sexually assaulted at some other point in her life, but by some other person – not by him. This suggestion reeks of desperation; if she had been assaulted in the past, why would Dr. Ford substitute Brett Kavanaugh for her “real” assaulter? Furthermore, Dr. Ford absolutely rejected the “someone else did it” explanation. As she explained during her testimony, the memory of Brett Kavanaugh on top of her, grinding his hips into her, trying to rip off her clothes, putting his hand over her her mouth to smother her screams for help, and the laughter of Kavanaugh and his drinking buddy, Mark Judge, are seared into her hippocampus. She testified that she is 100% certain that Kavanaugh was her attacker.

Others have suggested that because of his heavy drinking, which began in high school, Brett Kavanaugh may have “blacked out” during the assault or that his memory of what happened that summer evening may have been obliterated by alcohol. This seems far more plausible than the “some other guy assaulted Chrissie Blasey at some other time” defense.

But there may be even be a third way to reconcile the conflicting accounts.

If you were asked whether, when you were in high school, you attended a gathering where kids were drinking beer and “nothing happened”, I suspect you would say: “I’m sure I did.” But could you remember the specifics of the gathering? Who was there? When people arrived and left? What happened? Of course not. The mind doesn’t work that way.

As Dr. Ford explained, impactful, meaningful, painful or traumatic events are seared into the memory; everyday memories fade over time. Consequently, it’s no surprise that people at the party where Kavanaugh assaulted her don’t remember anything about the gathering. For everyone except Chrissie Blasey, Brett Kavanaugh, and Mark Judge, nothing memorable happened that evening in the summer of 1982.

I think it is possible that Brett Kavanaugh has no memory of that summer night, because, from his perspective, “nothing happened.” He and his buddy were drunk, as they were many evenings that summer. They followed Chrissie upstairs and pushed her into a room. They were the kings of Georgetown Prep. Rising senior, number 1 in his class, captain of the basketball team, etc. She was a nobody – a 15 year old who had just finished her freshman year and not even a student at one of the Catholic girls schools that provided Kavanaugh’s and Judge’s social companions. (Kavanaugh testified that he and Chrissie Blasey ran in “different social circles.”)

Kavanaugh threw her on a bed and got on top of her, grinding his penis into her and trying to pull off her clothes. Music was playing. Both boys were laughing. What fun! The girl was able to get away and left the party. There were no repercussions. It was just another day in the life of an entitled Georgetown Prep brat.

Did Kavanaugh actually intend to rape Chrissie Blasey? Maybe, but probably not. The entire episode probably lasted only a minute or two. He went downstairs and rejoined the party. Chrissie left. Nothing happened and nothing was imprinted on his memory.

As for Mark Judge, we don’t know. According to Dr. Ford’s testimony, she encountered him six to eight weeks later at a super market where he worked. He blanched, suggesting to her that he recalled the episode and was ashamed by it. Judge’s girl friend of a few years later, Elizabeth Rasor, has told The New Yorker that Judge admitted to her that while in high school, he and other boys took turns having sex with a drunk girl and was ashamed of it, suggesting that perhaps he has some shameful memories of the the summer of 1982. Maybe we’ll learn more once the FBI has interviewed Judge, but, then again, maybe not. Apparently Judge has battled addiction his entire life and he may have no memory of a two-minute episode in the summer of 1982 where “nothing happened”, other than providing him and Kavanaugh with a few laughs.

I hope the FBI doesn’t limit its investigation to trying to recapture the memories of the people who were at the gathering where Chrissie Blasey was assaulted. Mark Judge must be interviewed, of course, and Brett Kavanaugh must be re-interviewed. But interviews with Kavanaugh’s friends – PJ and Squi, et al. – and the girls who were at the gathering will probably not shed light on what happened the evening in question. They likely will, however, shed light on Kavanaugh and Judge’s heavy drinking, as will interviews with the dozens of people who have come forward to say that Kavanaugh has lied about the level of his drinking. It seems beyond dispute that he was a heavy drinker, a “sloppy” drunk, someone who became aggressive and belligerent when he drank. A mean drunk. They must be interviewed, as must Elizabeth Rasor and Julie Swetnick, the accuser represented by Michael Avenatti.

This is important because, apart from trying to determine what happened to Chrissie Blasey that summer night, Kavanaugh’s hearing revealed him as a liar and someone who does not have the temperament or impartiality to sit as a judge anywhere, much less on the Supreme Court.

Kavanaugh Is A Liar

In my September 22 blog, “The Case Against Kavanaugh’s Confirmation“, I discussed several instances where Kavanaugh lied – in 2006 to Senators Leahy and Durbin, earlier this month at his hearing, and during his interview with Martha MacCallum on FOX.
In the FOX interview he described his high school career as follows:

“I was focused on academics and athletics, going to church every Sunday at Little Flower, working on my service projects, and friendship, friendship with my fellow classmates and friendship with girls from the local all-girls Catholic schools.”

When numerous classmates came forward to assert that Kavanaugh was not only a frequent drunk, but frequently a sloppy, incoherent drunk, a belligerent, aggressive drunk, someone who could very easily have done what Dr. Ford alleged, Kavanaugh modified his position. In his rant to the Senate Committee, he said:

“My friends and I sometimes got together and had parties on weekends. The drinking age was 18 in Maryland for most of my time in high school, and was 18 in D.C. for all of my time in high school. I drank beer with my friends. Almost everyone did. Sometimes I had too many beers. Sometimes others did. I liked beer. I still like beer. But I did not drink beer to the point of blacking out, and I never sexually assaulted anyone.

“There is a bright line between drinking beer, which I gladly do, and which I fully embrace, and sexually assaulting someone, which is a violent crime. If every American who drinks beer or every American who drank beer in high school is suddenly presumed guilty of sexual assault, will be an ugly, new place in this country.”

During questioning, he “admitted” over and over that he drank beer, he liked beer, sometimes he drank too much beer, he still likes beer, etc. He said:
KAVANAUGH: Yes, we drank beer. My friends and I, the boys and girls. Yes, we drank beer. I liked beer. Still like beer. We drank beer. The drinking age, as I noted, was 18, so the seniors were legal, senior year in high school, people were legal to drink, and we — yeah, we drank beer, and I said sometimes — sometimes probably had too many beers, and sometimes other people had too many beers.
MITCHELL: What do you…
KAVANAUGH: We drank beer. We liked beer.
MITCHELL: What do you consider to be too many beers?
KAVANAUGH: I don’t know. You know, we — whatever the chart says, a blood-alcohol chart.”

He knew he’d been busted; the choirboy act wasn’t selling, so he decided to invoke the “hey, I was just a regular guy who did what everyone did” defense.

In my blog of September 25, “Kavanaugh May Not Have Been The Choir Boy He Pretends He Was“, I identified several entries on his senior class yearbook page that showed him to be a heavy drinker and a participant in some weird sexual behaviors. During the hearing of September 27, some of those areas were touched on, but not adequately developed. Still, it is clear Kavanaugh lied about them.

He testified that the “Devil’s Triangle” – referred to on his classbook page – was a drinking game; that “Judge – Have you boofed yet?” was an inquiry of his buddy, Mark Judge, as to whether he had farted yet; that his description of himself as the “Major Contributor” to the “Senior Week Ralph Club” meant that he vomited easily from eating spicy food; and that his (and several of his classmates’) reference to “Renate Alumnius” was a fond reference to a girl he and many of his friends knew. He said the entry: “Anne Daugherty’s – I survived the FFFFFFFourth of July” referred to a friend who stuttered a number of “F’s” before he said the “F” word; he said the entry: “What A Night: Georgetown v. Louisville – Who Won That Game Anyway?” referred to having such a good time that he forgot about the game, and had nothing to do with his drinking to excess. (Check the Urban Dictionary for the true meanings of “Devil’s Triangle”, “4F Club”, and “boofing.”)

I hope the FBI re-interviews Kavanaugh and pursues these, admittedly minor, lies because, minor though they may be, they reveal a man who doesn’t tell the truth. We already have one liar on the Court, with some weird sexual behavior in his past. That is one too many and we don’t need Brett Kavanaugh sitting on the bench with Clarence Thomas for the rest of their lives.

Kavanaugh Does Not Have The Temperament Or Lack Of Bias To Serve On The Supreme Court

Republicans who support Trump saw a man last Thursday who was righteously angry at having been wrongly accused. The rest of us saw a belligerent, combative, disrespectful, argumentative, evasive, untruthful, and overly-entitled jerk.

When asked repeatedly if he would simply ask for a reopening of the FBI background check, so as to clear his name, he refused to do so and claimed everything had already been investigated. When asked whether he would be willing to take a polygraph test – as Dr. Ford had successfully done – he refused and defended his refusal on the grounds that such tests aren’t admissible in federal courts—neglecting to mention that in a recent judicial opinion he had endorsed their reliability and use in hiring and law enforcement. (This was after he had described the hearing he was in as a “job interview.”)

He also displayed a shocking hatred of and bias towards Democrats that would make it impossible for him to be an impartial justice of the Supreme Court. He described the hearing concerning Dr. Ford’s accusations as follows:

“This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. and millions of dollars in money from outside left-wing opposition groups.”

No one has suggested that in making her accusations against Judge Kavanaugh, Dr. Ford was motivated by political animus or was part of some Clinton revenge conspiracy. No one.

Kavanaugh revealed himself as a Republican operative and a conspiracy theorist and no liberal or Democratic litigant could or should feel comfortable appearing in front of him.

Kavanaugh was incredibly disrespectful towards the Democratic senators on the Senate Judiciary Committee. When Sen. Whitehouse questioned him about his drinking, Kavanaugh did the “I like beer” jig and followed up with: “Do you like beer, Senator, or not?”

When Whitehouse tried to move the conversation along, Kavanaugh said again: “What do you like to drink?”

And when he didn’t get an answer, he asked again.

Similarly, when Sen. Klobuchar asked him about the possibility that he might have had memory lapses because of his heavy drinking, the exchange was as follows:
KLOBUCHAR: Was there ever a time when you drank so much that you couldn’t remember what happened, or part of what happened the night before?
KAVANAUGH: No, I — no. I remember what happened, and I think you’ve probably had beers, Senator, and — and so I…
KLOBUCHAR: So you’re saying there’s never been a case where you drank so much that you didn’t remember what happened the night before, or part of what happened.
KAVANAUGH: It’s — you’re asking about, you know, blackout. I don’t know. Have you?
KLOBUCHAR: Could you answer the question, Judge? I just — so you — that’s not happened. Is that your answer?
KAVANAUGH: Yeah, and I’m curious if you have.
KLOBUCHAR: I have no drinking problem, Judge.

What a prick.

In the self-pitying segment of his opening rant, Kavanaugh said:

“Thanks to what some of you on this [the Democratic] side of the committee have unleashed, I may never be able to teach again. . . . I may never be able to coach again.”

That may be the case, but it will not be because of anything Democratic senators did. And if parents might not want their daughters to play basketball under this man’s guidance or if students at Harvard Law School might not want him for a professor, why would we ever want him on the Supreme Court? For life?

The Case Against Kavanaugh’s Confirmation

Brett Kavanaugh should not be confirmed for a lifetime appointment as a Justice of the Supreme Court. He is a liar, a suckup, a result-oriented conservative ideologue, and a rubber stamp for big business interests.

Kavanaugh Is A Liar (And A Suckup)
The first words out of his mouth as he began his quest for a spot on the Supreme Court were lies. When Trump introduced him as his nominee, Kavanaugh said:

“Thank you Mr. President. Throughout this process, I have witnessed firsthand your appreciation for the vital role of the American judiciary. No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a supreme court nomination.”

Only a complete suckup could say with a straight face that Trump has an “appreciation for the vital role of the American judiciary.” And the statement that “no president has ever consulted more widely, etc.” is not just a blatant suckup; it is a flat-out lie. Trump has openly announced that he limited his “search” to a list given him by the Federalist Society. And, since Kavanaugh could not know what kind of process each of the previous 44 presidents followed in nominating prospective justices, he was lying -and sucking up – when he told Trump that “no president has ever consulted more widely or talked with more people from more backgrounds to seek input about a supreme court nomination.”

During the course of his hearing told several more lies.

Kavanaugh Lied About His Involvement In The Selection And Vetting Of Judge William Pryor
While in the Bush White House, Kavanaugh had the job of vetting potential judicial nominees. In 2006, when he was auditioning for a spot on the Court of Appeal for the District of Columbia, Kavanaugh was asked by Sen. Ted Kennedy, whether extreme statements made by Judge William Pryor, a potential nominee, had disturbed him. An example of the statements in question – Pryor’s argument that the recognition of a constitutional right to sodomy would “logically extend” to activities like “prostitution, adultery, necrophilia, bestiality, incest and pedophilia.”

Kavanaugh replied that he had not been involved in the selection or vetting of Judge Pryor.

When Sen. Patrick Leahy asked him earlier this month: “Did you interview William Pryor?” Kavanaugh said: “I don’t believe so. It’s possible but I don’t believe so.”

Leahy then entered into the record a December 2002 email to Kavanaugh (that Sen. Grassley had caused to be marked “committee confidential.”) It states:
“How did the Pryor interview go?”

Kavanaugh’s response:
“Call me.”

He was involved in the selection or vetting of Judge Pryor and he lied about it to Sen. Kennedy and to Sen. Leahy.

By the way, Pryor was eventually confirmed to a spot on the Eleventh Circuit Court of Appeal and was included on the list of recommended Supreme Court nominees the Federalist Society compiled for Donald Trump.

Memogate
Leahy also challenged Kavanaugh over his role in “Memogate,” a 2003 scandal in which a Republican aide named Manuel Miranda stole Democratic memos from a shared server. Those confidential communications discussed how Democrats planned to oppose several of Bush’s judicial nominees. At his 2006 hearing, Kavanaugh denied receiving any stolen documents.

After Kavanaugh had been confirmed to the Court of Appeal, documents that had initially been withheld from the senators on the judicial committee were released. A March 28, 2003, email from Miranda to Kavanaugh —subject header “For use and not distribution”— consists of an eight page cut-and-paste from a Democratic strategy document. It was obviously an internal Democratic party document and Kavanaugh, the Republican staffer in charge of judicial nominations, must have known that.

The documents that became public after Kavanaugh’s confirmation also showed that he had received other Democratic documents marked “confidential.” An email from Miranda to Kavanaugh, dated July 28, 2002, says that “Senator Leahy’s staff has distributed a confidential letter to Dem[ocratic] Counsel.” Miranda “ask[s] that no action be taken by any of your offices… except as I request.”

The “subject line” of a June 5, 2003, email from Miranda to Kavanaugh regarding Supreme Court confirmations reads: “Spying”. The first line states:
“I have a friend who is a mole for us on the left.”

Kavanaugh denied that this raised a red flag for him, stating:
“Again, people have friends across the aisle who they talk to… and there was a lot of bipartisanship on the committee.”

When Sen. Dick Durbin asked Kavanaugh to explain the apparent contradiction between his testimony at his confirmation hearing and the subsequently released documents, Kavanaugh ignored him.

At his hearing earlier this month, Kavanaugh revised his 2006 testimony and said that while he may have received stolen documents, he didn’t know they were stolen. That answer is implausible.

The Washington Post Fact Checker gives Kavanaugh “Three Pinocchios” for his “Memo gate” answers, i.e., he concluded that Kavanaugh lied.

Warrantless Wiretaps
Kavanaugh also testified falsely this month regarding his involvement in President Bush’s “Terrorist Surveillance Program,” known by most people as the warrantless wiretapping program. He testified that he first learned about it from a December 2005 article in The New York Times. The next day an email was released showing that on September 17, 2001, Kavanaugh emailed John Yoo, the Department of Justice lawyer responsible for the Bush-era “torture memo,” and asked Yoo about the program:
“Any results yet on the 4A implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?”

Kavanaugh later proposed that Yoo be made a Court of Appeal judge, despite his role in providing “legal” justification for the torture of suspected terrorists – widely agreed to have constituted war crimes. (Fortunately for all of us, Kavanaugh’s proposal was rejected.)

Kavanaugh’s Sexual Assault On Fifteen Year Old Christine Blasey Ford
Kavanaugh denies Dr. Ford’s allegations. Thus, if she is telling the truth, he is lying and the circumstances strongly suggest that she is telling the truth. She spoke to a therapist about the incident long before Kavanaugh was nominated to the Supreme Court. She wouldn’t have come forward and exposed herself to this grief if she weren’t telling the truth. She placed one of Kavanaugh’s friends in the room when he attacked her, something she would never have done if she were making the whole thing up. She passed a lie detector test.

I hope that next week, some Democratic senator asks Kavanaugh whether he has taken a lie detector test. Presumably he has not. The next question should be: “Why not?”

After Kavanaugh bobs and weaves for a while, the next question should be: “Will you take a lie detector test now, administered by a neutral expert?”

Then there is the letter from Christina King Mirando, a high school classmate of Christine Blasey, in which she states:
“This incident [Kavanaugh’s assault on 15 year old Christine Blasey] did happen. Many of us did hear about it in school and Christine’s recollection should be more than enough for us to truly, deeply know that the accusation is true.”

And, finally, there is Kavanaugh’s speech at Catholic University Law School in 2015, in which he alluded to his days at Georgetown Prep as follows:

“By coincidence, three classmates of mine at Georgetown Prep were graduates of this law school in 1990 and are really, really good friends of mine. Fortunately, we’ve had a good saying that we’ve held firm to to this day, as the dean was reminding me before the talk, which is: ‘What happens at Georgetown Prep stays at Georgetown Prep.’
That’s been a good thing for all of us, I think.”

The evidence suggests that Kavanaugh was a very heavy drinker in high school. I suspect he will have the opportunity next week to elaborate on why “what happens at Georgetown Prep stays at Georgetown Prep” has “been a good thing” for him. (These remarks in question begin a little after the five minute mark.)

The response of the Republicans on the Judicial Committee to Dr. Ford’s allegations – their refusal to ask the FBI to investigate and their refusal to call any witnesses – suggests that they believe she is telling the truth and are trying to ram Kavanaugh’s confirmation through before more facts emerge.

Kavanaugh Will Vote To Gut Or Overrule Roe v. Wade
During the Bush Administration, Kavanaugh was responsible for vetting prospective judicial appointments and preparing them for their hearings. Here is an example of his coaching advice to one judicial nominee:

“She should not talk about her views on specific policy or legal issues. She should say that she has a commitment to follow Supreme Court precedent, that she understands and appreciates the role of a circuit judge, that she will adhere to statutory text, that she has no ideological agenda.”

This is precisely how Kavanaugh testified during his three days of hearings earlier this month. With respect to Roe v. Wade, Kavanaugh testified that he follows precedent and that Roe v. Wade and its progeny are the settled law of the land. In a 2003 email, however, Kavanaugh said:

“I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.”

In the only abortion case on which Kavanaugh has ruled in his 12 years on the Court of Appeal for the District of Columbia, Garza v. Hargan, Kavanaugh made clear both his hostility to abortion and his willingness to ignore precedent to achieve an anti-abortion result.

In Garza, an undocumented pregnant teenager complied with all requirements of Texas law, including obtaining a court order, for obtaining an abortion. Nevertheless, the federal government obtained an order from Judge Kavanaugh preventing the girl from leaving the facility in which she was detained, thereby blocking the abortion. Judge Kavanaugh’s order required that the girl be assigned a “mentor” to advise her, but no mentor could be found. The girl was approaching the 20 week mark in her pregnancy, after which Texas law would prohibit an abortion. Kavanaugh’s order was clearly designed to drag things out until the 20 week deadline had passed.

Ms. Garza filed an emergency appeal of Judge Kavanaugh’s order to the entire Court of Appeal, and it was reversed. Kavanaugh wrote a long dissent, stating:
“The en banc majority . . . reflects a philosophy that unlawful immigrant minors have a right to immediate abortion on demand, not to be interfered with even by Government efforts to help minors navigate what is undeniably a difficult situation by expeditiously transferring them to their sponsors.”

This misstates the facts of the case and was not what the majority decided. Kavanaugh’s position, including his refusal to follow precedent, was devastatingly critiqued by Prof. Melissa Murray. (Google “Melissa Murray C-Span” and her critique comes right up. I strongly encourage you to watch it.)

Kavanaugh’s order and his dissenting opinion to the Court of Appeal’s decision reversing that order were issued in October 2017. Kavanaugh was added to the Federalist Society’s list of approved nominees for the Supreme Court in November 2017. His writings in the Garza case were Kavanaugh’s way of auditioning for the Supreme Court chair vacated by Justice Kennedy. (As an aside, there is nothing in Kavanaugh’s order or opinion that shows any comprehension of the pain and fear Ms. Garza, a pregnant 17 year old, must have felt as Kavanaugh manipulated the system in an effort to prevent her from getting the abortion she desperately wanted.)

Kavanaugh Will Be A Rubber Stamp For Big Business Interests
Kavanaugh has ruled 15 times against worker rights and only twice for worker rights. In 16 of 18 cases, Kavanaugh has ruled in favor of more air and water pollution, and in 17 of 18 cases, he has ruled to weaken protection for endangered species. Kavanaugh has ruled that the EPA lacks the authority to regulate greenhouse gases. He ruled against regulating cross-state air pollution. He ruled in favor of dumping coal waste and dumping hazardous waste. He ruled that it’s okay for factory farms to foul the air of their neighbors.

In consumer and regulatory cases, he has ruled 18 times for businesses and 4 times for consumer protection interests. In the area of antitrust or anti-monopoly, he ruled 2 times for the corporations and zero times for market competition. He consistently rules against government agencies when they are protecting the interests of the people over those of corporations.

Kavanaugh does not like human beings to sue corporations or sue the government, but if you are a corporation, the courthouse doors are always open.

In summary, Kavanaugh has been a Republican operative and a creature of the Federalist Society since the day he got out of law school. He worked on the Starr Commission investigation of Bill Clinton. He was one of the main drafters of the Starr Commission Report. He worked to get Bush appointed president, even though Gore got more votes. He worked to get Federalist Society lawyers placed on the federal bench. He worked on the Bush-Cheney torture program. As a judge, he has been a reliable vote for big business. He believes the president’s power is nearly unlimited and that the president should be immune not only from indictment, but even from investigation.

He has shown himself to be a suckup and a liar.

If Prof. Blasey Ford makes a good appearance next week and testifies credibly – which I suspect she will – Kavanaugh’s nomination will not be confirmed. Some Republican senators must be thinking about now: There must be some better candidates on Trump’s Federalist Society list. What about William Pryor?

The Democrats’ Panicky (And Pathetic) Response To The Resignation Of Anthony Kennedy

I was surprised by Anthony Kennedy’s announcement of his retirement for several reasons:

1. I assumed he enjoyed the power of being “The Decider” at the Supreme Court.  Pretty much every major decision over the past 20 years or more has been resolved by Justice Kennedy joining the majority in a 5-4 decision.  Wrong.
2. I projected onto Kennedy a desire to protect his legacy on gay and lesbian rights and a desire to atone for some of the horrible opinions in which he participated (e.g., Bush v. Gore) or wrote (e.g., Citizens United.)   Wrong.
3. I assumed Kennedy was a thoughtful man of character, who must be appalled by Donald Trump and, therefore, would be reluctant to give him the power of appointing his replacement.  Wrong.

It was unfathomable to me that Kennedy and Trump are buddies – they are – and I was unaware that Kennedy’s son has facilitated more than a billion dollars in loans by Deutsche Bank to Trump and his family.  At 78, I am still naive.

I was also surprised by the panicky and, frankly, pathetic response of Democratic leaders to this unsettling turn of events.  Their initial response (see Sen. Chuck Schumer) was to complain that nominating someone to fill a vacancy on the Supreme Court during an election year would violate “the McConnell Rule”.  Seriously?  The McConnell Rule?

McConnell’s refusal even to give a hearing to Obama’s nomination to fill the vacancy left by the death of Antonin Scalia, Merrick Garland,  is no “rule”.  It was an unconscionable, unprincipled power play.  It ignored the Senate’s constitutional obligation “to advise and consent.”  To reap the benefits of McConnell’s despicable behavior, the Republicans in the Senate then eliminated the filibuster for Supreme Court nominees.  The only “rule” this course of conduct established is the “Koch Rule”, namely, if your election has been bought and paid for by the Koch brothers and their libertarian billionaire buddies and you have the power to ram something down the throats of the majority of Americans that your paymasters want rammed, you ram.  (If you haven’t done so, please read “Dark Money” by Jane Mayer.)

If Obama had had giant cojones, he would have held a swearing in ceremony in the Oval Office, where he announced to the nation that the Senate Republicans had chosen not to exercise their constitutional obligation/opportunity “to advise and consent”, so he was acting to fill the Scalia vacancy with Merrick Garland.  Then he should have said: “Congratulations, Justice Garland.  I’ll expect you to start work tomorrow morning at the Supreme Court.”  Who knows where that would have ended up.

But bleating about the hypocrisy and unfairness of the Republicans’ conduct will get the Democrats exactly nowhere.  The way McConnell bulldozed and obstructed President Obama for eight years should have taught them a lesson:  These guys play hardball and take no prisoners. Fairness is not a consideration.

So, how should Democrats respond to Kennedy’s retirement? They can’t limit their opposition to Trump’s nominee to the threat that Roe v. Wade may be repealed.  They must broaden their attack and take this opportunity to educate the American people. This is the chance to explain how the Supreme Court has been politicized and how conservative political partisans appointed to the Court are committed to implementing the Koch brothers’ ideology rather than to the rule of law.  See “Dark Money“.

The Federalist Society, to which Trump has outsourced the selection of new justices, was created as part of the slow motion coup that began in the 1970s.  Again, see “Dark Money“.  It was formed in 1982, but was really the brainchild of Lewis Powell when he was a name partner at the Richmond, Virginia, law firm of Hunton, Williams, Gay, Powell & Gibson.  (How the Democrats in the Senate failed to unearth the Powell Memoradum spelling out the plan for a conservative takeover of the judiciary and the government before Powell was confirmed as a justice of the Supreme Court is a mystery.  But then, it was dated August 23, 1971, two months before Powell was nominated by President Nixon, and we didn’t have the internet then.)

For the past 45 years or so, the Supreme Court has been controlled by Republicans. Justices Scalia, Roberts, Thomas, Alito and Gorsuch are (were, in Scalia’s case) members of the Federalist Society.  Recently, these radically conservative courts have given us some truly awful decisions: Bush v. Gore, stopping the vote count in Florida and appointing George W. Bush president even though he got fewer votes than Gore; Citizens United, declaring corporations to be people with the right to spend unlimited amounts of money to buy elections; Hobby Lobby, holding that the religious beliefs of corporations must be given precedence over laws passed by Congress; Shelby County v. Holder, holding that racial discrimination in America has come to an end, obviating the need to enforce the Voting Rights Act.  For at least the past two decades, the Court has been the tool of the rich and the giant corporations and hostile to the rights of individuals, to employees, to access to the courts, and to unions.  But for Anthony Kennedy, who must have been a deep disappointment to conservatives – he got the job when the Senate refused to confirm Robert Bork, a radical conservative nut job – states would still be permitted to ban interracial marriages and gay marriages.  In some states, homosexual sex would still be a crime.

The Democrats must let the public know how their rights have been diminished and their lives controlled by a handful of conservative extremists, appointed by representatives of a minority of our citizens.  For example, the 50 senators who opposed Betsy DeVos’s confirmation as Secretary of Education represented 180 million people, while the 50 senators who supported her represented only 143 million.  I haven’t done the math, but the numbers would be similar for Gorsuch and will be similar for whoever Trump puts on the Court.  (This is because California and New York, with 65 million people between them, have four senators, just like Wyoming and North Dakota, with 1.4 million people.)

And make no mistake. Trump’s pick will be approved on a party line vote.  Senators Collins and Murkowski will dither a bit and maybe extract some worthless promise from Trump for their votes – Collins was tricked this way into voting for Trump’s tax bill – but, in the end, they will hop aboard.  

The Democrats will only be able to derail the Kochs’ takeover of the government and the Court by VOTING and taking America back from these ideologues.  The Democrats must retake control of the Senate in 2018 – a difficult proposition, given that 26 Democratic senators must hold their seats and the Democrats must also take two of 9 Senate seats currently held by Republicans.  If we can’t do that, Stephen Breyer and Ruth Bader Ginsburg must stay healthy until at least 2020, when between 20 and 22 Senate seats held by Republicans will be up for grabs.  

In 2020 Democrats must take control of all three branches of the government. Once they do, the Democrats must increase the number of seats on the Supreme Court to 11 and President Biden, Sanders, Warren, Booker, Bloomberg, Gillibrand, Kamala Harris, Oprah – whoever – must fill the additional two seats with liberal justices.  If they have to do away with the filibuster to accomplish this, do away with it.  If necessary, invoke the McConnell Rule.

I can imagine your horrified reaction to this proposal, but hear me out.  

The Constitution says nothing about how many justices must sit on the Supreme Court.  The Constitution required Congress to establish the Court, but there were no requirements as to its size. The first Supreme Court had six members. Congress increased the Court to seven members in 1807 and to nine in 1837.  It was briefly increased to 10 after the Civil War, but returned to nine in 1869, where it has stayed ever since.

And which is worse:  A constitutional “crisis” (which Democrats will win) or a Supreme Court controlled by five Federalist Society tools of the Koch brothers for the next 20 to 30 years?  (It’s a pretty good bet that Justice Thomas will retire next year, to be replaced by the next person on the Federalist Society’s list.)

Did Mitch McConnell Just Blink?

The Senate Judicary Committee just voted along party lines to move Judge Neil Gorsuch’s nomination to the full Senate. Debate on his nomination will start tomorrow. Enough Democratic senators – 42 – have expressed their intent to filibuster the nomination, so unless Senator McConnell changes the rules, the Democrats can block his confirmation.

Senator McConnell spoke this afternoon and said that: “It’s not too late for our Democratic colleagues to make the right choice,” stopping short of promising to invoke the Nuclear Option.

Did McConnell blink? Are there a handful of Republican senators who may not go along with the Nuclear Option? Or is McConnell hoping that the debate, combined with the $12 million in advertising being spent to promote Gorsuch, and public pressure will change a couple of Democratic votes so the Nuclear Option can be avoided? Or is McConnell just delaying his invocation of the Nuclear Option so he can make it look like a “reluctant” last resort? He can be like the abusive husband who says: “Look what you made me do.” Who knows. But McConnell knows that ending the filibuster is a big deal that will transform the Senate for a long time and he may be reluctant to go down in history as the man who destroyed the Senate.

McConnell may also have some reservations about rubbing the Democrats’ nose in their loss of Merrick Garland. Not only McConnell on previous occasions, but at least one Republican senator who spoke today, made a distinction between judicial appointments, where, according to them, the Nuclear Option may be justified, and legislation, where it cannot be justified. He’s got a lot of legislation coming at him down the road – a bill to keep the government open that must be passed by April 28, Trump’s tax reform bill – yet unwritten, Trump’s infrastructure plan – yet unwritten, a possible resuscitation of RyanCare/TrumpCare – yet unwritten, and the increase of the Debt Ceiling (which was recently exceeded.) The Republicans will likely need Democratic cooperation on some of these matters, given the collection of crazies in the Freedom Caucus. Invoking the Nuclear Option will burn a lot of bridges.

The statements of the Democratic Judiciary Committee members this morning before the Committee vote were impressive. They adverted to the shameful treatment of Merrick Garland, but based their “no” votes on Gorsuch on principle, citing persuasive examples of his extremist tendencies. To begin with, they were pissed that he wouldn’t answer any questions respecting his thoughts or his judicial philosophy. They pointed out that Judge Gorsuch always votes for the corporation over the little guy. Instead of basing his decisions on as narrow a ground as possible, Gorsuch tries to push the boundaries of existing law – always in a more conservative direction.

Gorsuch is hostile to the ability of women to make choices regarding their own bodies. After meeting with Judge Gorsuch for a couple of hours, Steve Bannon and Reince Priebus told the CPAC convention that Judge Gorsuch would fulfill Trump’s promise to nominate a judge who will overturn Roe v. Wade. Gorsuch wouldn’t even express approval of Griswold v. Connecticut, the case that held that an implied right of privacy prevents states from banning the sale or use of contraceptives. Finally, the fact that Judge Gorsuch was selected for nomination by the Heritage Foundation and, if confirmed, will be the most conservative member of the Court and that his “campaign” for the Court is being financed by millions in “dark money” were cited by nearly every Democratic senator.

I didn’t listen to much of the statements by the Republican senators; even I have limits and I have to get ready for the March Madness Finals. But what I did hear was, in essence, that Gorsuch is really qualified and Democrats “started it” when Harry Reid invoked the Nuclear Option in 2013 to get some of President Obama’s judicial nominations approved. This is a bogus argument. Senator Reid had to act because the Senate Republicans, in the minority in the Senate, had filibustered Democratic bills and appointments more than 300 times in the preceding four years and had filibustered 79 of President Obama’s appointments, more appointment filibusters than had occurred in the entire history of the United States up to that time. Once the Republicans got control of the Senate in 2014, they blocked everything, including refusing even to give Merrick Garland a hearing. They don’t have the high ground.

The debates, beginning tomorrow, should be interesting.

Of Course The Democrats Must Filibuster Neil Gorsuch

In my February 3, 2017 post, “The Democrats’ Position Must Be ‘Merrick Garland Or No One“, I argued that the Republicans must be opposed at every turn and that the Democrats in the Senate must filibuster Judge Gorsuch. Now, having watched him tap-dance his way through his confirmation hearing, my view hasn’t changed. To no one’s surprise, Judge Gorsuch demonstrated that he can dance. He’s smart, gracious and clean – possibly cleaner even than Vice-President Pence. Or Mitt Romney. And he said “gosh” and “golly” and “goodness” more often in a couple of days than I have in my entire lifetime. But he offered the Justice Committee nothing of substance.

Bottom line: If a gang of lowlifes kidnaps your child and then comes back months later and says you should let one of their children take over your child’s empty room, the answer is: “No”, no matter how sweet and endearing the “replacement” child appears to be. For this reason alone, the Democrats must oppose Judge Gorsuch.

At his hearing, Judge Gorsuch evaded every question that might give us an insight as to what he thinks. He would refer the questioner to his record or refuse to answer the question with some variation of “if I told you what I think on any subject, it is possible that that subject might some day come before the Court and some people might – wrongly – think I had already made up my mind.” This pabulum was, of course, bracketed by platitudes about how judges check their egos at the courtroom door and how all he would do is decide cases according to the law to the best of his ability. This is all-too-reminiscent of Judge Roberts, as charming, smart and squeaky-clean as Judge Gorsuch, claiming at his confirmation hearing that he would just “be an umpire, calling balls and strikes.” And you know how that turned out. (See Sen. Sheldon Whitehouse’s statement to the Committee at the end of this blog.)

But despite Judge Gorsuch’s masterly demonstration of his ability to evade questions, we do know something about what he thinks. He idolizes Antonin Scalia and his highest hope is to be just the kind of justice “Nino” was. Maybe in conservative-world, this is a noble ambition, but what it means to the rest of us is that he would be a result-oriented ideologue and a consistent fifth vote for the Roberts, Alito, Thomas and Kennedy bloc that has always, always toed the conservative party line. (See my blog of 2016, “Scalia Was ‘Consequential’ All Right; So Was Dick Cheney.“) And if and when Justice Kennedy retires, which is rumored to be as early as this summer, you can expect the nominee for his empty seat to be a far more reliable conservative than Justice Kennedy, making the conservative bloc impermeable to reason.

A Supreme Court that includes Judge Gorsuch and two extreme right wing replacements for Justice Kennedy and Justice Ginsburg will be a catastrophe for America. Democrats must do everything within their power to keep Scalia’s empty seat empty, which brings us to the filibuster and the Nuclear Option.

Everyone seems to think it is a foregone conclusion that if the Democrats mount a filibuster, Sen. McConnell will resort to the Nuclear Option and change the Senate rules to allow Judge Gorsuch to be confirmed by a simple majority vote in the Senate. Maybe. But as Doctor J. said, when asked if it was true that he could grab something off the top of the backboard: “Put a $100 bill up there and we’ll see.”

McConnell is the most successful politician of the last eight years. He engineered the unrelenting, ruthless and, I think, despicable obstruction of President Obama’s agenda, including a freeze on confirmation of Obama’s judicial appointments. (To break this logjam, Sen. Reid, finally invoked the Nuclear Option, which allows McConnell and the Republicans to say now: “The Democrats started it.”) If McConnell had any qualms about depriving Judge Garland of a confirmation vote, he swallowed them and prevented Judge Garland from even having a hearing. He seems pretty much immune from shame. But who knows? This will be a very big breach of Senate tradition and one from which there is no going back. Invocation of the Nuclear Option by Sen. McConnell to place Judge Gorsuch on the Court will be a declaration of total war and Senator McConnell may not want to go down in history as the man who ruined the Senate.

I would not be surprised if the Republicans propose that they will not invoke the Nuclear Option for any future nominees if the Democrats don’t filibuster Judge Gorsuch, citing Senate comity and all that bullshit. But, in addition to being the wrong move, it may turn out to be a sucker’s deal. In the 2018 midterm election, 25 seats now held by Democratic Senators will be open, versus only 8 Republican seats. Given the limited voter turnout for midterms and the inability of Democrats to get their voters out at all, we might very well end up with 60 Republican senators, making Trump’s future nominees filibuster-proof. Besides, once Gorsuch is on the Court, the battle has been lost.

And what do the Democrats have to lose by fighting? Nothing, as far as I can see. The idea that Democrats should not filibuster Judge Gorsuch because Sen. McConnell is threatening to take away their right to filibuster, and therefore should save their ammunition for the next nominee, when Sen. McConnell will surely take away their filibuster rights, makes no sense to me. And to roll over without a fight will demoralize the Democratic base.

The Democrats in the Senate, however, are wise not to make their opposition simply a response to the way Sen. McConnell treated Judge Garland. Even though everyone knows the unprincipled treatment of Judge Garland by the Republicans casts a shadow over the Gorsuch confirmation process, the Democrats must base their opposition primarily on Judge Gorsuch’s record. To do otherwise will make it too easy for McConnell to characterize this as a political struggle and to invoke the Nuclear Option.
And there is another point that must be made: Judge Gorsuch is the appointee of a man who is under investigation for cooperating with our enemy – Russia – to interfere with and influence our election. Until that investigation is completed, no one Trump nominates should be confirmed.

The confirmation of Judge Gorsuch would be another – and perhaps decisive – step in the slow-motion coup d’etat that is transforming America into a theocratic, plutocratic oligarchy. To fully understand what we can expect from the Court if Judge Gorsuch is confirmed, I urge you to read Sen. Sheldon Whitehouse of Rhode Island’s opening statement to the Senate Justice Committee that is considering Judge Gorsuch’s nomination. It is definitely worth your time.

Sen. Whitehouse’s statement to the Committee:
“The question before us is what happens when Republicans gain a five-seat majority on the Supreme Court?

I can’t help but notice the long array of 5-4 decisions, with all the Republican appointees lining up to change the law to the benefit of distinct interests: Republicans at the polls, and big business everywhere. Let’s look at the 5-4 decisions:

First, helping Republicans at the polls. All the Republican appointees’ 5-4 decisions on election law favor Republicans at the polls. Six to zero.

1. Helping Republicans gerrymander, paving the way for the Republican “REDMAP” plan that won the House against the American majority vote in 2012: Jubelirer, 5-4, all the Republican appointees.
2. Helping Republican legislatures keep Democrat-leaning minorities away from the polls with targeted voter suppression laws: Shelby County, 5-4, all the Republicans; Bartlett v Strickland, 5-4, all the Republicans.
3. Helping corporate money flood elections and boost Republican candidates: McCutcheon, 5-4, all the Republicans counting the concurrence; Bullock, 5-4, all the Republicans; and
4. The infamous Citizens United decision, 5-4, all the Republicans.

In each area, the Court made new law, 5-4, and each decision predictably helped Republicans win elections. At 6-0, it’s a partisan rout.

Second, let’s look at cases that pit corporations against humans: All the 5-4 Republican-appointee decisions line up to help corporations against humans. Citizens United and the political money decisions should again count here; all three of them 5-4, all the Republicans.

Then come decisions that protect corporations who’ve harmed their employees: in pay discrimination, Ledbetter, 5-4, all the Republicans; in age discrimination, Gross, 5-4, all the Republicans. In harassment cases, Vance, 5-4, all Republicans. In anti-retaliation cases, Nassar, yup, you guessed it – 5-4, all Republicans.

Then there are the decisions that protect corporations from class action lawsuits: Walmart v. Dukes, 5-4 and Comcast, both 5-4, both all the Republicans.

Then there are decisions that help corporations steer customers away from juries and into corporate-friendly mandatory arbitration: Concepcion and Italian Colors Restaurant, both 5-4, both all Republicans. The Iqbal decision, 5-4, all Republicans, helped bar the courthouse door for all types of plaintiffs.

All of this helps keep corporations away from juries – the one element of government hardest for corporations to control; indeed, tampering with a jury is a crime.

The Court also helps big business against unions: Harris v. Quinn, 5-4, all Republicans. Last year, Friedrichs was teed up as a 5-4 body blow against unions, when Justice Scalia died. With a new 5-4 Court, they’ll be back.

Throw in Hobby Lobby: corporations have religious rights that supersede health care for their employees, 5-4, all Republicans.

Add Heller and McDonald, reanimating for gun manufacturers a legal theory a former Chief Justice once called a “fraud”, 5-4, all Republicans. Help insulate investment bankers from fraud claims? Why not. Janus Capital Group, 5-4, all Republicans. Chamber of Commerce v. EPA gave corporate polluters an unprecedented victory. Again, 5-4. All Republicans.

That’s an easy 16-0 record for corporations against humans.

To me, every time seems like a lot. There is no coincidence here. Big business has law groups out trolling for test cases, to get those cases before the friendly Court. The Republican politico-industrial complex piles in with amicus briefs and floods to tell the Republicans on the Court what it wants. Republican justices are even starting to give hints, so big business lawyers can rush to get certain cases up pronto to the Court.

It’s a machine: special interests set up and fund front groups; the front groups appear as amici before the Court; the amicus briefs of the front groups tell the Court what the special interests want; the Court follows the amicus briefs; the decision benefits the special interests; and the special interests pour more money into the front groups. On it goes, like turning a crank. The biggest corporate lobby of them all is winning better than 2:1 at the Court.

This 5-4 rampage is not driven by principle. Over and over, judicial principles – even so-called “conservative” ones – are overrun on the Court’s road to the happy result.

Stare decisis: that’s a big laugh. These were law-changing decisions, many upending a century or more of law and precedent.

Textualism: the Second Amendment uses the military term “arms” and talks about militias, but never mind that when the gun lobby wants something.

Originalism: there’s a particularly good one. Find me a Founding Father who planned a big role for business corporations in American elections; or one who would have countenanced the steady strangulation of the civil jury, without so much as a mention of the Seventh Amendment.

The Citizens United majority even fiddled with Court procedure to get to the decision it wanted to deliver, dodging its way around a record that would have belied their findings of fact; setting aside that their findings of fact were factually preposterous – and that appellate courts are not even supposed to make findings of fact.

It’s not just us who notice. Top writers and scholars describe the Roberts Court as essentially a delivery service:

Jeffrey Toobin wrote in 2009, “Even more than Scalia, . . . [Chief Justice] Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”
Linda Greenhouse in 2014: “I’m finding it impossible to avoid the conclusion that the Republican-appointed majority is committed to harnessing the Supreme Court to an ideological agenda.”

Norm Orenstein has described what he called “the new reality of today’s Supreme Court: It is polarized along partisan lines in a way that parallels other political institutions and the rest of society, in a fashion we have never seen.”

Studies of the Court’s decisions show it’s the most corporate-friendly Court in modern history, with Justices Roberts and Alito vying to be the most corporate-friendly Justice.
And the American public knows something’s gone wrong at the Court. A 2014 poll revealed that a majority of Americans think a person won’t get a fair shake in this Court against a corporation.

Now, where do you [Judge Gorsuch] fit in? When Hobby Lobby was in the 10th Circuit, you held for a corporation having religious rights over its employees’ health care. Your record on corporate versus human litigants comes in, by one count, at 21-2 for corporations. Tellingly, big special interests and their front groups are spending millions of dollars in a dark money campaign to push your confirmation.

We have a predicament. In ordinary circumstances, you should enjoy the benefit of the doubt, based on your qualifications. But several things have gone wrong that shift the benefit of the doubt.

One, Justice Roberts sat in that very seat, told us he’d “just call balls and strikes,” and then led his five-person Republican majority on that activist, 5-4 political shopping spree. “Once burned, twice shy.” Confirmation etiquette has been unhinged from the truth.

Two, Republican Senators denied any semblance of due legislative process to our last nominee – one I would say even more qualified than you and that’s saying something. Why go through the unprecedented political trouble to deny so qualified a judge even a hearing, if you don’t expect someone more amenable to come down the pike. Those political expectations also color the benefit of the doubt.

Finally, the special interests who did so well in that 5-4 extravaganza of decisions are now spending millions and millions of dollars campaigning to push your nomination. They obviously think you will be worth their money. These special interests also supported the Republican majority keeping this seat open.

I’m afraid that all costs whoever now sits in that seat the benefit of the doubt, to answer the question, will you saddle up with the other Republicans appointees and launch the Court, 5-4 again, on another massive special interest and Republican election spree?

I hope whatever we may disagree about on this committee we can at least agree that we can’t have a Court where litigants in these 5-4 decisions can predict how they’ll do based on who they are. Here’s what it looks like now: If they’re big Republican election interests, they’ll win. Every time. If they’re corporations against a human, they will win. Every time. And your honor, every time seems like a lot.”