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.


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