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.

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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).


Generosity and the Las Vegas Massacre

October 17, 2017

Two weeks ago, I’d prepared commentary about the value of generosity in foreign affairs but awoke to the horrible reports from Las Vegas. I went ahead with it while I caught my breath and planned commentary about guns. But generosity is very relevant and I want to return to it. Gun rights definitions which don’t account for the thousands of people killed with guns every year are simply selfish. The it’s-my-gun-so-you-have-no-right-to-regulate-it attitude is selfishness, not liberty.

Stephen Paddock shouldn’t have been able to climb to the 32nd floor of the Mandalay Bay Resort with automatic weapons just because he claimed the right. Automatic weapons don’t prevent government tyranny as gun advocates sometimes claim; they’re weapons of war and provoke tyranny. We all have a right to safety and security but nuts with powerful weapons deprive us of that birthright. In a battle between self-defined freedom seekers and the military, everyone loses, permanently.

Generosity and its absence are underlie most of our political struggles and the gridlock in our national affairs. Selfish definitions of liberty which refuse to take account of the damage to others are out of keeping with our national history and traditions. Like misbegotten gun claims, arguments for an unregulated market, which ignore the hundreds of thousands of people injured by selfish business and corporate practices, are hypocritical cover for outrageous behavior. Selfishness is not a definition of freedom.

Generosity is relevant in yet another way. Our polarized politics and lack of respect for each other reflect declining generosity, when me, me, me is all that matters but opponents don’t. When people throw bricks through windows, and shoot bullets through skulls over politics, there’s no safety except in hiding. How many congressmen and women will have to be shot before Congress comes to its senses? Unwillingness to work with a president of the other party, lest he accomplish anything, is about disrespect, where only one’s own purposes count. If it was appropriate to prevent a vote on President Obama’s nominee, though a majority of the Senate would have supported Garland, is there any reason to respect any decision for which Gorsuch is essential? If it was all about them, then it’s equally appropriate that it’s all about us. That’s not democracy. That’s war.

President Trump says we all come together after a tragedies like these. We know that has been nonsense, that pleas for help after Sandy were scorned by representatives of other parts of the country, and Trump treats the efforts of Puerto Ricans as less worthy than those elsewhere. People in the continental US would have been equally helpless except that relief agencies and the Red Cross were able to organize supplies where they could be delivered, and the destructiveness of the hurricane in Puerto Rico went far beyond what happened elsewhere. But no, this was an opportunity to disparage people who aren’t part of the Trump coalition. Shame.

Even the right not to be shot in the back by officials with badges has somehow become a political issue, as if there are two sides to that question. By comparison, I’m all for the immigrants and their generous patriotism. I’ve had it with selfish imposters like Trump, Cruz, and McConnell. This country may be great again but only when we are rid of the people whose political ideal is to tear us apart.

— This commentary was broadcast on WAMC Northeast Report, October 3, 2017.


Super Precedent or Too Big to Lose

July 18, 2017

It was difficult to sit through all the sanctimonious claims of doing law by adhering to precedent by a succession of Supreme Court nominees and then read its decision in BNSF R. CO. v. Tyrrell in which the Court overruled International Shoe v. State of Washington. Senators have been grilling the nominees for years about adherence to precedent. We heard about ordinary precedent, long standing precedent, and precedent that has been used and cited numerous times.

International Shoe was decided in 1945 by legendary justices. Chief Justice Harlan Fiske Stone wrote the opinion. He was joined by Justices Douglas and Frankfurter, as well as justices Reed, Murphy, Rutledge and Burton who are less well known to the general public. There were no dissents. Justice Hugo Black concurred on the ground that the attack on the jurisdiction of the State of Washington was so frivolous it should have been dismissed out of hand. Justice Jackson was a member of the Court but recused himself and took no part. Effectively it was unanimous.

If ever a case was used and relied on it was International Shoe. Lexis, a legal database reported that International Shoe had been cited by nearly 22,000 judicial decisions at all levels of the American legal system, plus some 13,000 other sources. It showed no negative treatment.

International Shoe provided that companies could be sued either where the claim arose or where they did sufficient business to make it fair to sue them there.

Montana’s Supreme Court held that the defendant corporation could be sued in Montana “because it has over 2,000 miles of railroad track and employs more than 2,000 workers in Montana.” It other words, the company is quite busy in Montana. But the U.S. Supreme Court held that the corporation could only be sued at its home office.

In their freshman year, law students are drilled on International Shoe. Endless pages in textbooks are devoted to International Shoe. A pretty important decision indeed. But the Roberts Court didn’t like it.

Justice Sotomayor, as she often does, explained:

The majority’s approach grants a jurisdictional windfall to large multistate or multinational corporations that operate across many jurisdictions. Under its reasoning, it is virtually inconceivable that such corporations will ever be subject to general jurisdiction in any location other than their principal places of business or of incorporation. Foreign businesses with principal places of business outside the United States may never be subject to general jurisdiction in this country even though they have continuous and systematic contacts within the United States. … What was once a holistic, nuanced contacts analysis backed by considerations of fairness and reasonableness has now effectively been replaced by the rote identification of a corporation’s principal place of business or place of incorporation.  The result? It is individual plaintiffs, harmed by the actions of a farflung foreign corporation, who will bear the brunt of the majority’s approach and be forced to sue in distant jurisdictions with which they have no contacts or connection.

In other words, these companies are too big to lose. The more places a company does business, the further it can make plaintiffs travel. Even if plaintiffs can get to court over the hurdles placed by this Court, they will have to sue far away in unfamliar places. No barrier is strong enough to protect those companies which are already wealthy enough to give back to the society that protects them.

These cases have been decided under the Due Process Clause of the Fourteenth Amendments. The word “due” means appropriate. It is an invitation to craft a jurisprudence that maximizes fairness to the parties. But the Court has been going the other way, grounding judicial power on happenstance, not fairness.

The Roberts Court is not doing law. Instead it has its own economic policy. It doesn’t seem to have noticed that voters in both parties have been demanding populism in economic policy. But who elected the Roberts Court?

— This commentary was broadcast on WAMC Northeast Report, July 18, 2017.

 

 


What should we expect of law, judges and judicial nominees

April 8, 2017

People often ask me whether something is constitutional. I often respond by asking what they mean. Our Constitution is only as good as the people handling it. Beyond that it’s a piece of paper, that bends, folds and tears. The Founding Fathers often referred to constitutional language as parchment barriers.

All law is about prediction. What will the Court, or a judgment do and will the president or the governors enforce what they decree? The 13th, 14th and 15th Amendments became meaningless for decades after President Hayes removed the troops from the former Confederate states. Brown really meant something when Eisenhower sent the troops to Little Rock.

Sure, I think the Constitution should mean more; it should protects us. But I have only the power of argument. When I argue in the courts, I don’t just tell them what I think is right – I argue in ways I think will influence the court I am addressing. I learned that lesson years ago after writing a brief on behalf of several political scientists to explain an aspect of the 1st Amendment. We were only appearing as friends of the court, but our views carried the day on the Court of Appeals. One of the judges wrote that his reasons were well stated in our brief. Of course I thought that judge was a genius. But though we won on the Supreme Court, the grounds of victory had nothing to do with our brief. Plaintiff’s attorney crafted his argument to fit the specific concerns of the justices who would support our position. We eked out a 5-4 victory but when those justices left the Court, it was quietly overruled. It all depends.

Republicans pronounce that sympathy is no part of law, but then where is justice? They claim bound to follow only ancient dictionaries to tell us how two-century old language should be read now, assuming the ancients wouldn’t lift a finger about our problems. Or they claim to rely on precedent. But precedent isn’t self-justifying. We distinguish the authority of Brown v. Board of Education from the  horror of Dred Scott or Plessy v. Ferguson because Brown accurately stated enduring values and the others did not. That’s a judgment about decency and has nothing to do with balls and strikes. This is not a baseball game; language interpreted without decency and humanity slanders the people who wrote and adopted it. Nominees hiding behind precedent hide their heartlessness behind smokescreens and deny the obvious, that their values, or lack of them, will determine how they see and shape the law.

Gorsuch could not tell you that because his sense of good and evil are far from what most Americans would accept. So he and his supporters rely on empty jargon about precedent. But judges exercise judgment about precedent just as they do about language. That’s why we need judges with good judgment, not judges claiming to be logicians with computers who derive answers automatically, unthinkingly and without reference to consequences. That refusal to care is the bastardization of law. When Justice Blackmun protested a decision that left no one  responsible for the helplessness of a small boy, he wrote “Poor Joshua” with understated eloquence. Poor Joshua indeed. Law, like the Tin Man in the Wizard of Oz, needs a heart.

— This commentary was broadcast on WAMC Northeast Report, April 4, 2017.


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