Tuesday, September 25, 2018

How the Kavanaugh Situation Reflects on Pence's Question to Himself: "Why Am I Such a Loser?"

by Neil H. Buchanan

Remember the articles from back in June and July, immediately after Justice Anthony Kennedy's surprise retirement, with headlines like: "Brett Kavanaugh, Consensus Top Choice, Awaits Inevitable Nomination?"  You know, the news stories that stated as obvious fact that the only surprise about Kavanaugh was that he was not already on the Court, so superior was he to all of the other possibilities, and that Neil Gorsuch was lucky to have been tapped ahead of Kavanaugh?

You remember those news reports, right?  Of course not.  Kavanaugh was merely one of many possibilities, and while insiders were hardly surprised by his nomination, he was by no means the obvious superstar pick whose inevitability was impossible to deny.  He was just another carefully groomed movement conservative who would reliably move the Court even further to the right, and his extra oomph was that he was the most likely among them to give Donald Trump a pass when the Court inevitably must weigh in on presidential immunity from all things Mueller-related.

How is it, then, that the now-severely-tainted Kavanaugh is being so fiercely defended by Trump and nearly all Republicans?  Setting aside my argument that Kavanaugh's extra-extreme views would not ex ante have made him the top choice even for most Senate Republicans (all of whom are quite extreme in their views, but perhaps a notch or two less so than Kavanaugh), why would they embrace him so completely now?

In answering this question, it will be possible to ponder another riddle: Why is Vice President Mike Pence such a political orphan, when he should reasonably have believed that he would be the Republicans' knight in shining armor?

Monday, September 24, 2018

Finders, Keepers, Losers, Trump

by Michael C. Dorf

Last week, while in North Carolina surveying some of the damage caused by Florence, the president came across a property on which a yacht had washed ashore during the storm. According to the NY Times story:
“Is this your boat?” Mr. Trump asked the homeowner. 
When the man shook his head and said “No,” the president turned with a grin and replied, “At least you got a nice boat out of the deal.”
Then, the real-estate-tycoon-turned-president added: “They don’t know whose boat that is. What’s the law? Maybe it becomes theirs.”

This was, admittedly, not an important moment in the Trump presidency, but it is a reminder that the man whose principal claim to power is business acumen has no idea how a system of capitalism actually works. Nor does he have any sense of justice in a regime of private property.

Friday, September 21, 2018

Alternatives to FBI Investigation

by Michael C. Dorf

As the artificial deadline approached for Dr. Christine Blasey Ford to accept the invitation of Senate Judiciary Chair Chuck Grassley to testify by his completely artificial deadline of Monday, word came yesterday that she and her lawyers were trying to negotiate better terms. I  have no idea whether such negotiations will work and therefore she will testify some time later next week, whether she will cave and testify on Monday, whether stalemate will reign and the Republican-controlled chamber will proceed to a vote on Judge Kavanaugh's nomination, or whether some hitherto unimagined new development will take us all in a new direction.

Meanwhile, the claim by Grassley that the FBI can't conduct further investigation following a  nomination doesn't pass the laugh test. Grassley wrote of the Senate: "We have no power to commandeer an Executive Branch agency into conducting our due diligence" (double emphasis in original). That's true, kind of, except that the Senate does have the power to refuse to confirm a nominee unless the Executive Branch does some further work. One might even say that this is, in appropriate cases, a duty of the Senate as part of the "advice" it gives to the president before it gives its "consent."

Perhaps by the time readers encounter this column, Grassley will have softened his position, but even if not, there will be further investigation of Dr. Blasey's allegations. Here I'll examine two possible avenues.

Thursday, September 20, 2018

How Bad Will Things Become? Part Four

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.

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.

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 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.