by Neil H. Buchanan
In my latest Verdict column, "What Kavanaugh Could Have Said, But Didn’t: 'I Honestly Don’t Know What Happened, and I’m Willing to Accept the Senate’s Judgment'," I offer a suggestion about how Brett Kavanaugh could have responded to the sexual assault and attempted rape allegations against him in a way that would have been humane and honest and that might have actually won over some skeptics. I then note that he went in exactly the opposite direction, proving even more emphatically that he should not be on the bench.
I continue to be puzzled by the Republicans' strategy here. As Professor Dorf ably explained yesterday, even though Republicans are acting as if they absolutely must rush Kavanaugh through as quickly as possible, the odds that they will somehow fail to fill this Supreme Court seat with either Kavanaugh or another hard-line movement conservative are essentially one in a gazillion. That is my characterization, not Professor Dorf's, but the point is that the Republicans have -- at a minimum -- the luxury of the lame-duck session in which to do the deed. Taking an anti-woman stance now is an unforced political error on the Republicans' part.
In the end, we will have a 5-4 majority of hyper-conservatives on the Supreme Court. Perhaps the fifth vote will be Kavanaugh's, perhaps not. Either way, winter is coming. The question is how bad it will be.
Therefore, it is now time to add to my series of columns in which I have discussed how bad things might become under a post-Kennedy court. In Part One, I focused on the potential damage to women's reproductive rights. Parts Two and Three focused on the question of whether the new hyper-conservative bloc would have any hesitation in remaking the law in their own image and whether they would bother to be at all subtle about it. Here, I will focus on how the new Roberts Court might change some substantive areas of the law.
Thursday, September 20, 2018
Wednesday, September 19, 2018
The Stakes in the Next Round of Kavanaugh Hearings (if they ever happen)
by Michael C. Dorf
Reporters--especially in the law-focused media to which readers of this blog pay attention--have worked themselves into a frenzy over the scheduled hearing into whether Brett Kavanaugh sexually assaulted Christine Blasey Ford when he was 17 and she was 15. As I write this on Tuesday afternoon, it is not clear that a hearing will occur. Still, I want to make a provocative claim: Even if it does, this is a fairly low-stakes matter. I know that sounds counter-intuitive, but bear with me.
Reporters--especially in the law-focused media to which readers of this blog pay attention--have worked themselves into a frenzy over the scheduled hearing into whether Brett Kavanaugh sexually assaulted Christine Blasey Ford when he was 17 and she was 15. As I write this on Tuesday afternoon, it is not clear that a hearing will occur. Still, I want to make a provocative claim: Even if it does, this is a fairly low-stakes matter. I know that sounds counter-intuitive, but bear with me.
Tuesday, September 18, 2018
The Case For Kavanaugh Was Already a Bad Joke
by Neil H. Buchanan
At the beginning of my column last Thursday, I included a "Note to readers" that read as follows:
I truly do think that the content of what Kavanaugh, or any other nominee that the Federalist Society, Trump, and the Republicans (in that order) might put forward, is what ultimately matters. And, as I have already discussed in Parts One, Two, and Three of that series of columns, there is plenty to worry about. Because the rest of what I plan to write regarding the possible damage caused by a new Supreme Court hyper-extreme conservative majority is not Kavanaugh-specific, however, I will use today's column to talk about the status of Kavanaugh's nomination.
I am not predicting that Kavanaugh's nomination will die, of course, but I do think that it is important to assess where things stood before the big news broke over the weekend. The state of play only a handful of days ago was that Republicans -- included the now-exposed imaginary moderate Republicans like Senator Susan Collins -- were untroubled by the process and substance of Kavanaugh's possible elevation to the Court. It is worth remembering why their views were so dangerous.
Importantly, with the sexual assault allegation against Kavanaugh now dominating the news, there are inevitable comparisons to Clarence Thomas's nomination, which is now remembered entirely for sexual harassment allegations against Thomas and the Senate Judiciary Committee's shabby treatment of Anita Hill (due in depressingly large part to Joe Biden's mishandling of the mess). I will offer a parallel to Thomas, but that comparison will not have anything to do with different types of mistreatment of women.
At the beginning of my column last Thursday, I included a "Note to readers" that read as follows:
I had planned to write the fourth of my "How Bad Will Things Become?" columns today, discussing various areas of the law that likely-future-Justice Brett Kavanaugh and his right-wing colleagues might mangle for partisan purposes. That column will, unless intervening events require further delay, be published next Tuesday, September 18.Today is September 18. Reasonable minds can differ, but I think the thunderbolt over the weekend, in which a woman went public with a credible accusation of sexual assault against Brett Kavanaugh, counts as such an "intervening event."
I truly do think that the content of what Kavanaugh, or any other nominee that the Federalist Society, Trump, and the Republicans (in that order) might put forward, is what ultimately matters. And, as I have already discussed in Parts One, Two, and Three of that series of columns, there is plenty to worry about. Because the rest of what I plan to write regarding the possible damage caused by a new Supreme Court hyper-extreme conservative majority is not Kavanaugh-specific, however, I will use today's column to talk about the status of Kavanaugh's nomination.
I am not predicting that Kavanaugh's nomination will die, of course, but I do think that it is important to assess where things stood before the big news broke over the weekend. The state of play only a handful of days ago was that Republicans -- included the now-exposed imaginary moderate Republicans like Senator Susan Collins -- were untroubled by the process and substance of Kavanaugh's possible elevation to the Court. It is worth remembering why their views were so dangerous.
Importantly, with the sexual assault allegation against Kavanaugh now dominating the news, there are inevitable comparisons to Clarence Thomas's nomination, which is now remembered entirely for sexual harassment allegations against Thomas and the Senate Judiciary Committee's shabby treatment of Anita Hill (due in depressingly large part to Joe Biden's mishandling of the mess). I will offer a parallel to Thomas, but that comparison will not have anything to do with different types of mistreatment of women.
Monday, September 17, 2018
My Mostly Uninformed Speculation About What Manafort Will Dish
by Michael C. Dorf
Paragraph 8 of Paul Manafort's plea agreement requires him to "cooperate fully, truthfully, completely, and forthrightly" with the Mueller investigation. Does this mean that Manafort will implicate Donald Trump in the Russian effort to influence the 2016 presidential election or obstruction of the investigation? That depends on what Manafort knows, but it is difficult to believe that Mueller's team would have cut the deal it did with Manafort if not.
After all, Manafort was already facing prison time for his conviction last month in a federal court in Virginia, and the trial on additional charges in federal court in DC was very likely to go against Manafort as well. An ordinary prosecutor will often cut deals with defendants who would be easily convicted at trial simply to save resources, but (as Justice Scalia famously noted in his dissent in Morrison v. Olson), that sort of resource constraint plays a much less substantial role in the exercise of prosecutorial discretion by a special prosecutor. Mueller did not go easy on Manafort to avoid the uncertainty of a second trial or to conserve prosecutorial resources for other, more important, cases. Presumably Mueller cut the deal because Manafort had dirt to dish.
The question is what dirt and on whom.
Paragraph 8 of Paul Manafort's plea agreement requires him to "cooperate fully, truthfully, completely, and forthrightly" with the Mueller investigation. Does this mean that Manafort will implicate Donald Trump in the Russian effort to influence the 2016 presidential election or obstruction of the investigation? That depends on what Manafort knows, but it is difficult to believe that Mueller's team would have cut the deal it did with Manafort if not.
After all, Manafort was already facing prison time for his conviction last month in a federal court in Virginia, and the trial on additional charges in federal court in DC was very likely to go against Manafort as well. An ordinary prosecutor will often cut deals with defendants who would be easily convicted at trial simply to save resources, but (as Justice Scalia famously noted in his dissent in Morrison v. Olson), that sort of resource constraint plays a much less substantial role in the exercise of prosecutorial discretion by a special prosecutor. Mueller did not go easy on Manafort to avoid the uncertainty of a second trial or to conserve prosecutorial resources for other, more important, cases. Presumably Mueller cut the deal because Manafort had dirt to dish.
The question is what dirt and on whom.
Saturday, September 15, 2018
Originalism Without History: A Response to Professor Randy Barnett
By Eric Segall
At the Volokh Conspiracy, Professor Randy Barnett has a long post about Brett Kavanaugh's testimony concerning originalism (and other matters). Barnett focuses some of his remarks on the following three questions put to Kavanaugh by Senator Kennedy referring to District of Columbia v. Heller: "Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?"
These questions, of course, suggest a critique of originalism made by many legal scholars and academic historians: the study of history is and should be a rigorous discipline requiring the person doing the studying to immerse herself in the peoples, traditions, values, and events of long ago. Trying to decide what the text of a 1788 or 1868 document meant at the time is simply not an exercise judges, law clerks, and lawyers are trained to do.
Kavanaugh, not surprisingly, ducked these questions by saying that for "most ... constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation" the Heller Court did.
At the Volokh Conspiracy, Professor Randy Barnett has a long post about Brett Kavanaugh's testimony concerning originalism (and other matters). Barnett focuses some of his remarks on the following three questions put to Kavanaugh by Senator Kennedy referring to District of Columbia v. Heller: "Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?"
These questions, of course, suggest a critique of originalism made by many legal scholars and academic historians: the study of history is and should be a rigorous discipline requiring the person doing the studying to immerse herself in the peoples, traditions, values, and events of long ago. Trying to decide what the text of a 1788 or 1868 document meant at the time is simply not an exercise judges, law clerks, and lawyers are trained to do.
Kavanaugh, not surprisingly, ducked these questions by saying that for "most ... constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation" the Heller Court did.
Friday, September 14, 2018
A World (Only Partly) Shaped By Two September Crises
by Michael C. Dorf
On Tuesday, Donald Trump commemorated the 17th anniversary of the 9/11 terrorist attack in true Trumpian fashion -- by pumping his fists self-congratulatorily upon arriving in Shanksville, Pennsylvania for a solemn ceremony and by sending out an enthusiastic but otherwise incoherent tweet. As Trevor Noah observed, bizarre and loathsome as Trump's 2018 behavior was, it was not nearly as bad as what he has done on past 9/11 anniversaries or on the awful day itself.
Meanwhile, tomorrow will mark the 10-year anniversary of the collapse of Lehman Brothers, which set in motion what we came to call the financial crisis and the Great Recession. To be sure, the preceding dramatic fall in the subprime mortgage market and broader housing market, as well as other firm-specific troubles like those that hit Bear Sterns, make the selection of any single date as the start of the financial crisis and Great Recession contestable. Nevertheless, given the cascade of events that followed Lehman's collapse, it is as good a point as any to choose to remember.
In today's essay, I want to use the confluence of these two anniversaries as an occasion to make some observations about how these events have shaped our current landscape--and how they have not.
On Tuesday, Donald Trump commemorated the 17th anniversary of the 9/11 terrorist attack in true Trumpian fashion -- by pumping his fists self-congratulatorily upon arriving in Shanksville, Pennsylvania for a solemn ceremony and by sending out an enthusiastic but otherwise incoherent tweet. As Trevor Noah observed, bizarre and loathsome as Trump's 2018 behavior was, it was not nearly as bad as what he has done on past 9/11 anniversaries or on the awful day itself.
Meanwhile, tomorrow will mark the 10-year anniversary of the collapse of Lehman Brothers, which set in motion what we came to call the financial crisis and the Great Recession. To be sure, the preceding dramatic fall in the subprime mortgage market and broader housing market, as well as other firm-specific troubles like those that hit Bear Sterns, make the selection of any single date as the start of the financial crisis and Great Recession contestable. Nevertheless, given the cascade of events that followed Lehman's collapse, it is as good a point as any to choose to remember.
In today's essay, I want to use the confluence of these two anniversaries as an occasion to make some observations about how these events have shaped our current landscape--and how they have not.
Thursday, September 13, 2018
Another Trump Casualty: The Myth of Susan Collins
by Neil H. Buchanan
[Note to readers: I had planned to write the fourth of my "How Bad Will Things Become?" columns today, discussing various areas of the law that likely-future-Justice Brett Kavanaugh and his right-wing colleagues might mangle for partisan purposes. That column will, unless intervening events require further delay, be published next Tuesday, September 18.]
[Update on 9/18: Surprise! Or not. Intervening events indeed require further delay. Part Four of "How Bad Will Things Become?" is now rescheduled to 9/20.]
Two weeks ago, a Washington Post columnist wrote, "Rest in Peace, Lindsey Graham." It was brutal, making the point that Graham had gone from being the late John McCain's best bud to being Donald Trump's aggressive point man in the Senate, even though Graham's current persona requires ignoring everything that McCain -- and Graham himself -- had said and believed to be true about Trump.
It is a rather amazing thing that someone so lacking in core convictions not only thought he should be the president but that the political press treated him as a brave, independent-minded teller of hard truths. Yes, the thought went, Graham is a hard-right hawk and a movement conservative, but he's funny and honest and you know where he stands. And now Graham spends his time running interference for Trump.
The Trump era is not lacking in examples of people bending themselves into pretzels to survive. Even McCain himself, as I wrote last week, was anti-Trump more in theory than reality, and he (along with all of his colleagues) again and again proved that the defense of institutions and nonpartisan ideals was no match for their glee in checking items off of the hardcore conservative wish list.
Yesterday, news emerged that Senator Susan Collins, the Maine Republican who has managed -- against all evidence -- to maintain a reputation as a moderate and a voice of reason, is now being targeted for a reelection challenge. There is nothing notable about a politician facing an opponent -- that being what elections are all about -- but this challenge is explicitly contingent on Collins's vote on the Kavanaugh nomination.
That story is mildly interesting, and I will discuss it momentarily. My primary focus here, however, is on Collins's crumbling facade of reasonableness and affability. Many of us have seen all along that her image is a peculiarly indefensible myth, and it now appears that she is revealing her inner hack, unable to handle the pressure that comes with being confronted with her own hypocrisy.
[Note to readers: I had planned to write the fourth of my "How Bad Will Things Become?" columns today, discussing various areas of the law that likely-future-Justice Brett Kavanaugh and his right-wing colleagues might mangle for partisan purposes. That column will, unless intervening events require further delay, be published next Tuesday, September 18.]
[Update on 9/18: Surprise! Or not. Intervening events indeed require further delay. Part Four of "How Bad Will Things Become?" is now rescheduled to 9/20.]
Two weeks ago, a Washington Post columnist wrote, "Rest in Peace, Lindsey Graham." It was brutal, making the point that Graham had gone from being the late John McCain's best bud to being Donald Trump's aggressive point man in the Senate, even though Graham's current persona requires ignoring everything that McCain -- and Graham himself -- had said and believed to be true about Trump.
It is a rather amazing thing that someone so lacking in core convictions not only thought he should be the president but that the political press treated him as a brave, independent-minded teller of hard truths. Yes, the thought went, Graham is a hard-right hawk and a movement conservative, but he's funny and honest and you know where he stands. And now Graham spends his time running interference for Trump.
The Trump era is not lacking in examples of people bending themselves into pretzels to survive. Even McCain himself, as I wrote last week, was anti-Trump more in theory than reality, and he (along with all of his colleagues) again and again proved that the defense of institutions and nonpartisan ideals was no match for their glee in checking items off of the hardcore conservative wish list.
Yesterday, news emerged that Senator Susan Collins, the Maine Republican who has managed -- against all evidence -- to maintain a reputation as a moderate and a voice of reason, is now being targeted for a reelection challenge. There is nothing notable about a politician facing an opponent -- that being what elections are all about -- but this challenge is explicitly contingent on Collins's vote on the Kavanaugh nomination.
That story is mildly interesting, and I will discuss it momentarily. My primary focus here, however, is on Collins's crumbling facade of reasonableness and affability. Many of us have seen all along that her image is a peculiarly indefensible myth, and it now appears that she is revealing her inner hack, unable to handle the pressure that comes with being confronted with her own hypocrisy.
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