Kavanaugh on Investigating the President

October 9, 2018

Brett Kavanaugh is now supposed to be called “Justice Kavanaugh.” The Constitution refers to members of the Supreme Court as judges. Whether the term “justice” will be appropriate depends entirely on his behavior. Of that I am doubtful. I think there was no justice for Dr. Christine Blasely Ford.

There is strong evidence that Kavanaugh will solidify a majority for repealing a half century of progress on voting rights, women’s rights, gay rights, anti-discrimination law and protections against our becoming a police state.  Kavanaugh invariably parried questions about his views with recitations of prior law, showing only that Kavanaugh could explain the cases, but never denying his likely impact.

Nevertheless, Trump and his Senate sycophants would have nominated and confirmed someone equally damaging to American law. More ominous are Kavanaugh’s views about whether it is OK to investigate a sitting president.

Kavanaugh joined the investigation of President Clinton on matters stemming from his relations with Paula Jones. That suit was dismissed because it didn’t claim Clinton violated the law. It was brought, however, for purposes unrelated to the suit, namely to enable fishing expeditions on Clinton’s behavior. That’s called abuse of process.  Those questioning Clinton eventually found Monica Lewinsky. By contrast to Trump’s behavior, she was a willing participant. In those days Republicans were puritans.  Kavanaugh pursued Clinton with gusto.

Then, with Bush in the White House before the election of President Obama, he told an audience at Minnesota Law School, that he had changed his mind. He wrote that defending against the Paula Jones litigation took Clinton’s attention off the growing threat from al Qaeda and similarly weighty matters. So Kavanaugh concluded that there were good reasons not to sue sitting presidents. He added that impeachment was always available. Left unsaid, however, was that to be more than a partisan political tool, impeachment must rest on investigating to determine what happened.

Unlike the Clinton investigation, the investigation of the Trump campaign is about the violation of multiple laws, both constitutional and statutory – whether Trump’s campaign worked with a foreign country to tamper with an American election and support that country’s interests in exchange for putting Mr. Trump in the White House. The Mueller investigation provides an independent, nonpartisan basis for considering impeachment. Without Mueller, we have only partisanship – a partisan whitewash or a partisan indictment.

So, Trump’s selection of a judge who doubts the legitimacy of investigating a sitting president strengthens his attacks on the ongoing investigation. That’s not news, given Trump’s tweets about pardons and remarks about firing Mueller. But we don’t allow people to be judge in their own cause. What we already know about the Trump campaign justifies a deeper look. And Trump’s effort to control the investigation can amount to impeachable behavior. For Democrats to take back the Court, the law and the cause of justice, they will have to defeat Kavanaugh’s senatorial supporters and elect a Congress prepared to prevent presidential abuse. In other words, the battle isn’t over and the stakes just got larger.

— This commentary was broadcast on WAMC Northeast Report, October 9, 2018. This is a revised and updated version of commentary originally prepared for broadcast on September 18, 2018, pulled because of the Kavanaugh hearings, rescheduled for September 25 but pulled again at the last minute because of new developments in the Middle East. The earlier version was posted here.

 

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Supreme Court Justices and the Biblical Injunction on Gleanings

October 3, 2018

During the Jewish High Holy Days, we read from the biblical book of Leviticus where God enjoins the ancient Hebrews to leave the gleanings of their fields for the poor. I began to think about the conservative members of the current Supreme Court.

Though it’s 5000 years later, stick with me. Conservative nominees, including Judge Kavanaugh, have been telling us that decisions begin and end with the words of the law, a claim we call textualism. How can a textualist obey the ancient biblical injunction about gleanings?

Gleanings are what’s left in the fields after the harvest. Are textualists absolving us from caring for the poor, and, if not, how do they suggest we accomplish it?

Most of us don’t have gleanings – we’re not farmers. Are only farmers responsible to the poor, allowing the rest of us to take comfort from their work. That would be a “strict” textual solution but it’s not very satisfying since the Bible repeatedly stresses our obligation to the poor. Then how should we do it?

Led by Scalia, textualists often point to specific examples of how it was done when the authoritative texts were laid down. Of course, that means ancient solutions become less and less relevant. Scarcer and scarcer gleanings are left for more and more of the poor and they are harder and harder for the destitute to reach. So, the textualist philosophy gradually cancels the maxim itself. The textualists’ approach means the poor can go hungry as gleanings decline in the modern world.

An obvious solution is to identify the objectives of the biblical passage about gleanings and figure out how it might most appropriately be done. Scalia fought that idea. He railed against the possibility that the principles or values that underlie legal injunctions might be interpreted by judges. Liberals might try to figure out how to care for the poor instead of declaring the injunction unworkable. In other cases, liberals might try to assure accurate trial results, not merely obedience to traditional formalities. The defendant lost but had a chance so it’s over.

The late Justice Blackmun once cringed when a father beat his son so badly that the boy’s brain was destroyed and he became almost literally a vegetable. “Poor Joshua” he wrote and was lambasted for letting his sympathy affect his judgment. You may remember that Justice Sotomayor was subjected to the same attack. Sympathy, in the textualists’ view, negates legality. Since when, however, should one be ashamed of sympathy for the unfortunate? Since when is justice defined by not caring about the impact of the rules we create on the people who have to live with them?

Textualism camouflages abuses written into the legal system by justices without principles, as if “the law,” and not the judges, were doing all the damage. It’s time to disqualify judges for lack of empathy. Does the law have no gleanings to offer? No principles of caring and just behavior with which to help fill in the gaps and the changes in legal meanings that take place over time? I have never believed that the written law is responsible for the harm done by judges who mangle it with closed hearts and eyes blind to reality.

Brett Kavanaugh, Trump’s latest nominee, continues the charade of denying that their cramped sense of justice is crucial to the decisions they make. Regardless of what the FBI finds about what happened to Dr. Ford, Kavanaugh has not justified our confidence by evasively blaming everything on his reading of past decisions.

 This commentary was broadcast on WAMC Northeast Report, September 25, 2018.

 

 


Kavanaugh

September 18, 2018

Brett Kavanaugh no longer seems a shoo-in for appointment to the Supreme Court. Kavanaugh has now been accused of attempted rape. Let’s be clear – there has never been a time when rape was just juvenile misbehavior. Rape is and has been a crime for centuries. Nevertheless, I doubt this president will make a better nomination, a point Akhil Amar, an old friend on the Yale Law faculty, made eloquently on these airwaves recently. If the Republicans can put another person on the Court, whoever it is will solidify a majority for repealing a half century of progress on social, procedural and political rights, repealing gay rights, women’s rights, anti-discrimination law and a host of protections against our becoming a police state.

Beyond the question of who Trump’s nominee is or will be, the larger question for both the Court and the country is the impact on the November congressional elections. Control of Congress is crucial not only for its legislative output, but also for eventually retaking the Court.

At the hearings, Kavanaugh invariably responded to questions about his own views with descriptions of prior law, showing only that Kavanaugh could explain the cases, which no one doubted. More interesting were his shifting views about whether it is OK to investigate a sitting president. It seems pretty clear that he believes it’s a bad idea to investigate and prosecute sitting presidents outside the impeachment process. But he hasn’t told us whether it is unconstitutional.

Kavanaugh joined the investigation of President Clinton on matters stemming from his relations with Paula Jones. The civil suit brought against Clinton was eventually dismissed because it did not claim Clinton violated the law. That suit, however, was brought for purposes unrelated to the claims in the suit, namely to conduct fishing expeditions on Clinton until they found something that might be illegal. That’s called abuse of process.

Those questioning Clinton eventually found Monica Lewinsky. By contrast to Trump’s behavior, she was a willing participant. The Republicans went after Clinton because it was sex and in those days Republicans were puritans.

Kavanaugh eventually wrote that defending against the Paula Jones litigation took Clinton’s attention off the growing threat from al Qaeda and similarly weighty matters. So he thought there were good reasons not to sue sitting presidents. But he did not slam the door shut. He expressed no view on the constitutionality of investigations or prosecutions. And he commented that there was always impeachment, which, if it is to be more than a partisan political tool, must be based on investigation to determine what happened.

Unlike the Clinton investigation, the investigation of the Trump campaign is about the violation of multiple laws, both constitutional and statutory – whether Trump’s campaign worked with a foreign country to tamper with an American election and to support that country’s interests in exchange for putting Mr. Trump in the White House. Whether or not a president can be prosecuted while in office, the Mueller investigation provides an independent, nonpartisan basis for considering impeachment. Without Mueller, we have only partisanship – a partisan whitewash or a partisan indictment.

So, for Trump to nominate a candidate for a crucial vacancy on the Supreme Court who doubts the legitimacy of investigating a sitting president, looks a lot like deliberate interference with the ongoing investigation. That’s not news, given Trump’s tweets about pardons and remarks about firing Mueller. But Trump’s efforts to control the investigation of his own behavior, making him the judge of his own case, offends a sense of justice. And that is directly relevant to the November elections. This president must have a Congress which is prepared to serve its constitutional function of preventing presidential abuses of power.

— This commentary was scheduled for broadcast on WAMC Northeast Report, September 25, 2018, but pulled at the last minute because of new developments in the Middle East.


Anthony Kennedy And The Future Of The SCOTUS

July 4, 2018

Welcome to Iran. Iran has a Guardian Council of men in long robes. We have a Guardian Court of nine judges in black robes. Both decide who rules. The Guardian Council of Iran decides who is allowed to run. The Guardian Court decides which party wins by blessing the vote rigging that favors Republicans – by blessing gerrymandering after the Republicans rewrote voting districts to favor themselves; by blessing registration requirements that Republicans erected to block anyone likely to vote Democratic from getting or staying registered and from voting; and by removing the protections of the Voting Rights Act against discriminatory devices in the former Confederate states and wherever discrimination had been the rule.

The Guardian Court competes with Iran’s Guardian Council for political control by limiting what labor unions can spend[1] and by overruling limits on political spending by corporations.[2] It tilts the whole electoral environment toward the rich and powerful and against workers and consumers.

The U.S. Guardian Court is nearly as effective as the Iran Guardian Council, even without Russian help. And the retirement of Justice Anthony Kennedy will make it worse. He was the only conservative who understood that vote rigging is inconsistent with a democratic constitution and sometimes acted on that understanding. With a less principled replacement, the current court will present an even bigger barrier to protecting American democracy.

This isn’t about law and all about partisanship. It’s not, in Roberts famous example, like an umpire calling balls and strikes. It’s an umpire in one ball club’s pay, corrupt even as courts across the globe are gaining the confidence to insist on clean elections. To put it another way, the U.S. court system is being corrupted by the rewards of capitalism.

Still more is at stake. Roe v. Wade,[3] protecting a right to abortion, is at stake in the changes in the membership of the Court along with a panoply of labor, consumer, environmental and civil rights protections.

Discouraged? This is the worst time to be discouraged. We can take the country back. But first we must win two elections, the 2018 legislative election and the 2020 presidential election.

Winning the 2018 legislative elections on both the state and national levels can reduce the damage. Fairer state legislatures can insist on fairer elections. Congress has the power to regulate national elections to block states from using unfair rules. And it can block Trump’s plan to abuse the census to further turn the Republican minority of voters into national dominance.

Along the way, winning in 2018 can prevent any more bad nominations to our court system. It can block the Administration’s abuse of everyone from workers to women to immigrants.

Winning in 2020 will make all that easier and it will make it possible to get the Court back. Yes I said we can get the Court back; we can end the rule by the US Guardian Council that masquerades as a Court.

The Constitution does not specify the number of justices on the Supreme Court. That is set by law.[4] The number of justices has been set as low as five and as high as ten.[5] Although a controversial proposition, it has been argued that the number can be changed by the simple process of nomination and confirmation.[6] Either way, it is not set in stone.

President Franklin Delano Roosevelt proposed to increase the number when the Court was blocking his efforts to deal with the Depression. In the event, the Court backed down without any change in the number. But the point is that it can be done and should be.

This is a time to get fired up by the efforts of the capitalists, corporations and wrong-wing religious groups to use the courts to take our country away from us. We can take it back. We must and will take it back.

— This commentary was broadcast on WAMC Northeast Report, July 3, 2018.

[1] Janus v. AFSCME, Council 31, 2018 U.S. LEXIS 4028 (2018).

[2] Citizens United v. FEC, 558 U.S. 310 (2010).

[3] Roe v. Wade, 410 U.S. 113 (1973).

[4] 28 USC § 1.

[5] Act of Feb. 13, 1801, § 3, 2 Stat. 89; Act of March 3, 1863, ch. 100, 12 Stat. 794.

[6] Peter Nicolas, “Nine, Of Course”: A Dialogue On Congressional Power To Set By Statute The Number Of Justices On The Supreme Court, 2 NYU J.L. & Liberty 86 (2006).


Whitford v. Gill

June 19, 2018

Commentators have treated the Court’s decision in Whitford v. Gill, the Wisconsin gerrymandering case, as just a technical decision, a delay in getting a substantive decision out of the Court. They’re nuts and I’m furious.

Roberts, the current Chief Justice of the Supreme Court, is stalling for time. Time serves the Republicans in several ways: the most likely and immanent resignation is from Justice Kennedy who is the weak link in the conservative justices’ opposition to doing anything about gerrymandering; the oldest member of the Court is Justice Ginsburg and she is reliable in demanding equal protection in voting arrangements; replacing either of those justices while Trump is president would give Republicans a solid 5-vote majority in all elections cases and just about everything else. It would lock in the Republican majority. Roberts is trying as hard as he can to lock in Republican victories at all foreseeable elections, after famously telling the Senate at his confirmation hearings that he was merely an umpire calling balls and strikes. Umpires like that should be fired.

He also unleashed another ploy that people did not understand. By insisting that standing – a technical term for the right to sue – has to be asserted by plaintiffs based on their specific districts rather than statewide to challenge inequality in voting arrangements, he actually tried to shred plaintiffs’ proof. The best explanations of what gerrymandering is follow what the people who draw the lines actually do – they try for the best and most reliable statewide partisan vote for their party. But Roberts says that’s not justiciable. He wants proof for each district in which the voters votes are wasted and their voting power is diluted. But the basis of the dilution claim is precisely the equal protection comparison with all the other districts. If that is out of bounds, plaintiffs are entitled to take a walk to the outhouse.

But, a lawyer writing friendly-seeming language so that people will not understand how badly they are being affixed by a threaded metal fastener to the wall of defeat, Roberts makes it sound like they can just sharpen their presentation and then all will be just fine. Roberts should be impeached as unworthy of the robes of justice.

I’d go further. Many scholars have argued quite convincingly that over its two-and-a-quarter centuries, the U.S. Supreme Court has done much more harm than good. Some of us nearing the end of our careers happened to start practice at a time when we did have a people’s Court, a court that believed in equality and ended segregation, a court that believed in democracy and ended malapportionment, a court that believed in accurate fact-finding and tried to end abuses in the system of so-called criminal justice. But that Court has gradually slipped out of reach until the present Court has become an apologist for the abuses of the rich and the powerful, giving corporations the power to shred the rights of employees, customers, neighbors and political opponents.

So I think it’s time for some constitutional amendments that would really make a difference

  • End the electoral college in favor of voting for president by popular vote, ending the reign of minority presidents like Trump – unless the courts still manage to protect underworld control of elections
  • End the treatment of corporations as legal persons and let them face the regulatory ax
  • End gerrymandering and put an end to control by judicial partisans who shred the meaning of both equality and democracy
  • And, my favorite, an amendment to delete Article III and abolish the so-called Supreme Court – I’d like to see Roberts homeless, without a job, a robe or any of the respect due a decent person.

  This commentary was broadcast on WAMC Northeast Report, June 19, 2018.

 

 


Workers’ Rights Dishonored Again by the Supreme Court’s Conservative Majority

May 29, 2018

Once again, President Trump’s nominee to the Supreme Court demonstrates the Court’s and the president’s hostility to worker rights. In cases testing whether companies can require their employees to sign agreements that abandon any right to go to court or bring class actions, Gorsuch’s opinion for the Court sides with the companies. That prevents employees from pooling their resources when contemplating expensive litigation.

The Norris-LaGuardia Act, passed in 1932, protects workers’ right to collective action on labor issues:

the individual unorganized worker is commonly helpless to exercise actual liberty of contract . . . , wherefore, . . . it is necessary . . . that he shall be free from the interference, restraint, or coercion of employers . . . in … concerted activities for … mutual aid or protection . . . .

The National Labor Relations Act, passed and signed in 1937, reaffirms that

[e]mployees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Both statutes were passed with the understanding that “the individual unorganized worker is commonly helpless” against employers. But the Court held that the Federal Arbitration Act, passed and signed in 1925, protects arbitration agreements. Usually, later statutes are held to overrule or limit earlier ones, not the other way around. So the Court decided that the later statute didn’t mean to limit the Arbitration Act. Of course, Gorsuch and the Court didn’t and couldn’t know that. What they threw at us was pure preference – anything that helps companies against their employees fits their labor policy. Gorsuch and this Court doesn’t read the law, as they like to claim; they make it. And they have been consistently turning against workers’ rights.

There was a time in this country when workers were completely dependent on their employers. They were required to live in company homes, buy from company stores, and were paid in scrip that was only honored by the company. Thus any attempt to leave left employees bereft of everything.

This Court will not be satisfied until workers have to sign away their right to seek better jobs, leave town, or buy their goods anywhere but the company store. There is a term for that, serfdom, and it is still practiced in some countries. When the Tsar of Russia freed the Russian serfs, the change there rivaled the end of slavery here. We needn’t go into all the other rights that serfdom gave the masters, like the right to violate the women. Serfdom stank. The claim that employers can get anything they want by putting it into a contract shreds all our rights.

We’ve been seeing that lately in the sexual abuse claims that have been made since the Harvey Weinstein revelations. Employers didn’t put those claims into the contracts but their right to reject applicants or fire people at will worked for a long time.

Law exists to protect people – except that the U.S. Supreme Court with Gorsuch solidifying its position doesn’t think ordinary people deserve any rights. In my view, it’s the Court that deserves none.

— This commentary was broadcast on WAMC Northeast Report, May 29, 2018.


Unions, Anarchy and the Court

February 27, 2018

The Supreme Court, the one in Washington, heard argument Monday in Janus v. American Federation of State, County and Municipal Employees. The case challenged whether unions, elected by a majority of the workers as their bargaining agent, can charge what are called agency fees, that is, fees for the work they do negotiating for better wages and working conditions. The argument against the unions is that the unions might advocate things that some workers disagree with and, therefore, worker dues are being used in a way that violates their freedom of speech.

The question is how far the Court majority is likely to take us toward anarchy. But first, three short paragraphs of explanation of the terms involved. Unions are selected in a carefully supervised process to be the exclusive bargaining agent for the workers in the shop. The union officers are elected in turn by the membership. The officers are always on those electoral hooks. The union can be decertified if people conclude that the workers no longer support that choice. And the officers can be defeated at the next election.

Unions are exclusive bargaining agents because a plurality of competing unions can’t represent the workers as effectively. Employers could just deal with compliant unions and leave the others out on strike. The responsibility to share the cost of the bargaining unit is necessary because without it, workers can be “free riders,” getting the benefits of their unions’ efforts while refusing to pay for it. That would undermine the unions’ ability to do their work.

From the perspective of the challengers to the part of union dues that supports collective bargaining and handling of grievances, those expenses are as political as lobbying and candidate support. For them, elections don’t matter, just whether union leaders say and act in ways that individual workers dislike. Their argument is that they shouldn’t have to pay.

So now I want to talk about the next case. Obviously many people object to the use of their tax dollars by President Trump to say things that they believe are horrendous, not to mention all the things he does that many taxpayers object to. Can they demand freedom from paying for his press officers and for any portion of his salary which is used for the purpose of making speeches, twits or statements. The logic is similar. The question is how far this union case can take us toward anarchy?

The same argument can be extended to the statements of whichever party opposes their own beliefs. Can taxpayers sue to defund all the press offices, and all the speechwriters, and the congressional TV studio?

There are problems with taxpayer suits. The Supreme Court might bar the door, but the principle is the same. And there are organizations and other parties who could probably make arguments that they are more injured than an ordinary taxpayer.

The same issues come up on the state and local levels too.

We might also raise the same questions about the Court itself. It is taking American law in directions many Americans strongly disagree with. There are costs involved in preparing opinions and publishing them. Do they also violate taxpayers’ First Amendment rights?

The Founders believed that elections solved the speech problem. But the Court views it differently. For the Court, corporations have First Amendment rights to speak for a majority of their boards, with the funds of their consumers. The dissenting board members, shareholders and purchasers, however, have no right to object to the use to which their funds are put.  Unions, by contrast, can’t speak for a majority of their members, despite the fact that they have available to them an electoral process that consumers don’t.

The logic of where the Court appears to be going is not law and order. Instead it is about anarchy. There is no law or government if each of us is a law unto ourselves, including those uses of speech that are necessary to the various jobs that officials and representatives have. There are anarchists in this country, and the gun owning, self-proclaimed “sovereign citizens,” are among them. The Republican Party, however, is anything but. Their party stands for social control. The issue for them is not authority itself but who controls what. Anarchy is anathema to majorities of both major parties and inconsistent with democratic government. But the Court may not understand the connection and the implications of what they are doing.


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