SCOTUS & Brett Kavanaugh

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See also: SCOTUS and the US courts 2017-18

29 June
Thomas Mann: For partisan gerrymandering reform, the federal courts are closed
(Brookings) In a 5-4 decision in Rucho v. Common Cause, the Supreme Court ruled that partisan gerrymandering claims present political questions beyond the reach of the federal courts. This came as no surprise to close observers of the half-century of litigation that proceeded it. While the Court had long acknowledged the possibility (even sometimes the likelihood) of constitutional violations from partisan gerrymandering, it was openly skeptical of identifying a workable standard (one grounded in a “limited and precise rationale” and “clear, manageable, and politically neutral”) for courts to use in resolving such claims.
The two consolidated cases were strong. Both gerrymanders were egregious. One, affecting the entire state delegation in Congress, was crafted by Republicans in North Carolina; the other, centered on a single congressional district, by Democrats in Maryland. Plaintiffs applied a three-part test, examining intent, effects, and causation, and marshaled considerable evidence that the discriminatory effects in these two plans could not be due to legitimate redistricting objectives. They utilized the work of scholars who had risen to the challenge issued years earlier by Justice Anthony Kennedy to develop workable and neutral standards. In her dissent, Justice Elena Kagan provides a clear, understandable explanation of how big data and computer simulations can convincingly identify redistricting outliers. Plaintiffs acknowledged that redistricting is inherently political and limited their remedial attention to only the most extreme cases. It’s hard to imagine a more powerful case or a more compelling constitutional argument for the Court to enter this political thicket than that contained in Justice Kagan’s dissent.
… Two final thoughts. First, partisan gerrymandering is more a consequence than a cause of polarization. It is an affront to our democracy (one of many) and now also a weapon in the war underway between the parties for control of national and state government.
Second, our single-member, first-past-the-post electoral system naturally underrepresents residents clustered in large metropolitan areas. This obstacle to fair representation facing Democrats is much more serious than partisan gerrymandering.

They’re not ‘wonder twins’: Gorsuch, Kavanaugh shift the Supreme Court, but their differences are striking
(WaPo) According to data compiled by Adam Feldman, who runs the website Empirical SCOTUS , Gorsuch and Kavanaugh have disagreed more than any pair of new justices chosen by the same president in decades.
Kavanaugh was about as likely to be in sync with his liberal seatmate Elena Kagan as his fellow conservative Gorsuch, Feldman’s research shows.
According to Feldman’s numbers, rookie Kavanaugh was in the majority more than any other justice, with Roberts in second place. Gorsuch was at the bottom, with the court’s liberals and the iconoclastic Justice Clarence Thomas, a conservative who specializes in dissent. … At times, they seem to be walking in the shoes of the men they replaced: the late conservative Antonin Scalia in Gorsuch’s case, the more moderate Kennedy for Kavanaugh.
The differences between Gorsuch and Kavanaugh might be more noticeable because the term was without many contentious political disputes. In the two that mattered on the last day of the term, gerrymandering and the census, they were together.
Also, there were plenty of odd coalitions this term. According to Feldman’s statistics, every conservative member of the court at some point voted to form a majority with the liberal justices. And every liberal at least once left behind all of his or her usual voting partners to join the conservatives.

27 June
As Bad as Citizens United
By Steve Israel, Former Democratic congressman from New York and Zach Wamp, Former Republican congressman from Tennessee
(The Atlantic) Today’s Supreme Court ruling that the Constitution doesn’t bar even extreme partisan gerrymandering is the worst election-related decision since Citizens United, which in 2010 opened the floodgates for corporate money in campaigns. The Court just stacked the deck in favor of parties over voters—and laid the groundwork for yet more polarization.
Most congressional districts are not competitive. Right now, according to The Cook Political Report, of the 435 districts in the House, only 21 are true “toss-ups,” whereas 344 are considered safe seats. (The rest lean in one direction or the other.) In this climate, electoral survival means aligning with base voters to protect your flank, left or right. Compromise isn’t a virtue; it’s an invitation to a primary.
The good news is that the process is being corrected at the state and local levels.
Grassroots efforts have persuaded several states to adopt better redistricting standards. Arizona, California, Hawaii, Idaho, Iowa, Montana, New Jersey, and Washington all currently have independent or nonpartisan redistricting rules in place. Colorado, Michigan, Missouri, Ohio, and Utah will have either commissions or new practices ready for the next round of redistricting.
Still, today’s Supreme Court decision is an enormous setback; the conservative majority has given a green light to partisan gerrymandering in every state that has not acted independently to curb this activity.

17 June
SCOTUS Just Killed Off Virginia’s Racial Gerrymander. Its Decision Will Affect Elections for Years to Come.
(Slate) The Virginia House of Delegates’ racial gerrymander is officially dead—killed off by a 5–4 Supreme Court ruling on Monday that seems to clear the way for a potential Democratic sweep of the Virginia Legislature in November.
Although Monday’s decision in Virginia House of Delegates v. Bethune-Hill slays a gerrymander, it revolves around a more mundane issue: Who has the ability to defend that gerrymander in federal court? When Virginia voters first filed a lawsuit alleging that multiple House districts were drawn illegally along racial lines, the state attorney general defended the map. Eventually, a federal court found “overwhelming evidence” that the state had “sorted voters into districts based on the color of their skin,” violating “the guarantees of the Equal Protection Clause.” It appointed a special master to redraw 11 House districts and adopted his proposals, ordering the House to adopt his new map for the 2019 election.
Ginsburg’s opinion was joined by Justices Sonia Sotomayor, Elena Kagan, Clarence Thomas, and Neil Gorsuch.
Supreme Court rules in case watched for impact on Trump pardons
(Politico) In a 7-2 ruling, the justices declined to disturb a longstanding legal principle known as dual sovereignty, which allows state governments to bring their own charges against defendants already tried or convicted in federal court, or vice versa.
The decision drew separate dissents from justices at opposite ends of the court’s ideological spectrum: liberal Ruth Bader Ginsburg and conservative Neil Gorsuch.
Fordham University law professor Jed Shugerman told POLITICO that the Gamble decision will have “no real impact on Trump cases.” Manafort is still facing state prosecutions in New York and Virginia, which have their own jeopardy rules, he noted. And former national security adviser Michael Flynn’s guilty plea to one count of making false statements to the FBI was limited to federal law, Shugerman said. The same appears true of Roger Stone’s prosecution on false statement and witness tampering charges, he added.

27 May
Is Justice Brett Kavanaugh As Bad As Democrats Feared?
(New York) … as this potentially pivotal Supreme Court term unfolds, what have we learned about Justice Kavanaugh and the impact he’ll have on constitutional law and Americans’ lives? Does he represent the tipping point for a conservative majority on the Court that will soon begin toppling cherished precedents? Or will he instead, as some expect, operate cautiously, perhaps aligning himself with Chief Justice Roberts as a sort of center-right ballast that ensures the right’s revolution from above moves at a deliberate but not precipitous pace?
He’s solidly conservative
He’s a career conservative Republican who knows how to play the partisan game in the ostensibly nonpartisan world of the federal courts. Nothing in his record as a circuit court judge from 2006 until 2018, or his moves on the Supreme Court, betray any signs of rebellion.
He’s typically cautious and reserved
Kavanaugh is known as a clear and logical legal thinker who avoids sweeping pronouncements or stylistic excesses. The New York Times’ Adam Liptak recently argued that in this regard, Kavanaugh has distinguished himself to a significant degree from Trump’s other appointee, Neil Gorsuch: “Justice Kavanaugh is, for now at least, more cautious and workmanlike. He has been in the majority more often than any other justice so far this term, often allied with Chief Justice John G. Roberts Jr., who is at the ideological center of the current court.”
He’s a constitutional “originalist”
As he has made very plain as a judge and in other venues …, Kavanaugh follows the late Justice Antonin Scalia in strongly believing that the judicial branch’s role is to follow the original intent of the Founders without extending constitutional rights beyond their express provisions. … Kavanaugh’s not going to become a pioneering First Amendment champion like Kennedy if it means embracing an expansive view of civil liberties and the judiciary’s role in articulating them.
He’s no defender of reproductive rights
Even if it wasn’t evident from his service to cultural conservatives like Starr and Bush, or his Federalist Society affiliation, or his Roman Catholic faith, or his fondness for Scalia and Rehnquist, Kavanaugh has sent reasonably clear signals of his disdain for a woman’s right to choose abortion.
He believes in strong executive powers
This assessment from SUNY-Albany law professor Julie Novkov seems fair::
“Kavanaugh has a history of service within the executive branch, including a stint in George W. Bush’s Office of Legal Counsel and as his staff secretary. The Bush OLC crafted an extraordinarily strong theory of executive power and authority that it used to justify and defend the Bush Administration’s controversial treatment of war detainees. While Kavanaugh did assist independent counsel Kenneth Starr in his investigation of the Clinton White House, he argued in a 2009 article that Congress should enact a law preventing a sitting president from being investigated while in office.” … “While justices’ prior writings and opinions are not always great predictors of how a justice will rule once elevated to the Supreme Court, it seems plausible that Kavanaugh will provide a reliable fourth vote along with Alito, Thomas, and Gorsuch to support strong executive authority, especially when a conflict entails claims of a security, emergency, or military threat. He also appears to be willing to draw lines to limit the scope of investigations of the president for wrongdoing.”
He may be ready to buck Supreme Court precedent
With the Supreme Court having an ever-expanding smorgasbord of state abortion restrictions to choose from if it wishes to reverse or modify Roe and Casey, Kavanaugh could indeed have the chance to add a crucial vote to a counter-revolutionary step back toward criminalized abortion. In this and other areas of constitutional law, this new and controversial justice will have an opportunity to leave his mark on all of us.

12 May
Kavanaugh and Gorsuch, Justices With Much in Common, Take Different Paths
By Adam Liptak
(NYT) On the Supreme Court, they were widely expected to be jurisprudential twins. But it turns out that there is more than a little daylight between Justice Neil M. Gorsuch, who joined the court in 2017, and Justice Brett M. Kavanaugh, who started in October after facing accusations of sexual assault, which he denied, at his confirmation hearings.
“They’re disagreeing more than we would have expected,” said Jonathan H. Adler, a law professor at Case Western Reserve University. The two justices have found themselves on opposite sides in quite a few cases, including ones involving the death penalty, criminal defendants’ rights and Planned Parenthood.
Justice Kavanaugh has not yet completed a full term, and the court’s biggest decisions — on religious monuments, partisan gerrymandering and adding a citizenship question to the census — are yet to come. Neither of the newest justices is likely to disappoint his conservative supporters in those blockbuster cases.
But there is more to the Supreme Court’s work than the handful of big decisions issued at the end of June. It must also decide which cases to hear, how broadly to decide them and on what basis. In all three areas, the two justices appointed by Mr. Trump have taken different paths, with Justice Gorsuch for now veering further to the right.

2018

10 October
Chief Justice Roberts asks federal judges to handle Kavanaugh ethics complaints
(PBS Newshour) The complaints deal with statements Kavanaugh made during his confirmation hearings. They were filed originally with Kavanaugh’s old court, the U.S. Court of Appeals for the District of Columbia Circuit.
Roberts took no action on them while Kavanaugh’s nomination was pending. He received the first three of 15 eventual complaints on Sept. 20, a week before Kavanaugh’s angry denial of a sexual assault allegation by Christine Blasey Ford.
The judiciary’s rules allow members of the public to lodge complaints about federal judges. They typically are dealt with by experienced judges in the courthouse or region where a judge serves. Judges who receive complaints have a range of options that include dismissing them out of hand, having local judges investigate them or asking Roberts, in his capacity as head of the federal judiciary, to assign the complaints to judges in a different part of the country.
Merrick Garland, the chief judge of the D.C. Circuit, typically deals with ethics complaints, but he apparently stepped aside from complaints against Kavanaugh.

9 October
Justice Kavanaugh’s Law Clerks Are All Women, a First for the Supreme Court
(NYT) Justice Brett M. Kavanaugh, confirmed to the Supreme Court amid fiery accusations of sexual misconduct against women, arrived Tuesday for his first day on the bench with an unprecedented all-female class of law clerks.
As a result, more than half of the Supreme Court’s law clerks this year will — for the first time in American history — be women.
Former colleagues of Justice Kavanaugh have described a longstanding reputation of promoting women in law. During his 12 years at the United States Court of Appeals for the District of Columbia Circuit, the majority of Justice Kavanaugh’s law clerks were women — 25 of 48 — and during his confirmation hearings he testified that he graduated more of them to clerkships at the Supreme Court than any other federal judge.

8 October
Kavanaugh sworn in again during ceremonial event at White House
U.S. Supreme Court Justice Brett Kavanaugh was sworn in again, for the cameras this time, at a White House ceremony this evening, but not before U.S. President Donald Trump slammed the judge’s opponents for a “campaign of personal destruction.”
U.S. Supreme Court Justice Brett Kavanaugh participates in his ceremonial public swearing-in with retired justice Anthony Kennedy as U.S. President Donald Trump and Kavanaugh’s wife, Ashley, and daughters Liza and Margaret look on. (Jonathan Ernst/Reuters)

6 October

Kavanaugh Is Sworn In After Close Confirmation Vote in Senate

Judge Brett M. Kavanaugh was confirmed to the Supreme Court on Saturday by one of the slimmest margins in American history, locking in a solid conservative majority on the court and capping a rancorous battle that began as a debate over judicial ideology and concluded with a national reckoning over sexual misconduct.
As a chorus of women in the Senate’s public galleries repeatedly interrupted the proceedings with cries of “Shame!,” somber-looking senators voted 50 to 48 — almost entirely along party lines — to elevate Judge Kavanaugh. He was promptly sworn in by both Chief Justice John G. Roberts Jr. and the retired Justice Anthony M. Kennedy — the court’s longtime swing vote, whom he will replace — in a private ceremony.
For President Trump and Senate Republican leaders, who have made stocking the federal judiciary with conservative judges a signature issue, the Senate vote was a validation of a hard-edge strategy to stick with Judge Kavanaugh, even after his nomination was gravely imperiled by allegations by Christine Blasey Ford that he had tried to rape her when they were teenagers.

5 October
Dear Senators: The Opposition to Brett Kavanaugh Includes Churches, Law Professors, and Conservatives — Even His Own Friends

4 October
When Kavanaugh is confirmed, impeachment could follow. Here’s how.
By Elyse Samuels, Patrick Martin
The countdown to Brett M. Kavanaugh’s final confirmation is underway.
(WaPost) A limited FBI investigation into sexual assault claims against the federal judge is done. The agency’s report was sent to the White House on Wednesday, and lawmakers reviewed it Thursday.
On Friday, the Senate agreed to move to a final vote on President Trump’s Supreme Court nominee, which will take place Saturday. Barring any last-minute surprises, the bitterly divided Senate will confirm Kavanaugh to a lifetime appointment to the nation’s highest court .
In early September, even before the recent spate of sexual misconduct allegations, murmurs among Kavanaugh opponents fixated on whether he had lied under oath before the Senate Judiciary Committee.
Some Senate Democrats took to social media to air their ire and frustration. One former deputy assistant U.S. attorney general, who previously worked for a top Democrat, even called for Kavanaugh’s impeachment from the federal judiciary. “Much of Washington has spent the week focusing on whether Judge Brett Kavanaugh should be confirmed to the Supreme Court,” Lisa Graves wrote in a Slate column on Sept. 7, more than a week before the New Yorker published the then-anonymous sexual assault claims of Christine Blasey Ford. “After the revelations of his confirmation hearings, the better question is whether he should be impeached from the federal judiciary. I do not raise that question lightly, but I am certain it must be raised.”
Graves wrote that Kavanaugh had misled the Judiciary Committee about the stolen documents that Graves had written as chief counsel for nominations for Sen. Patrick J. Leahy (D-Vt.) when he was the chairman of the committee. Kavanaugh, she wrote, “lied. Under oath. And he did so repeatedly.”
Therefore, she concluded, “he should not be confirmed. In fact, by his own standard, he should clearly be impeached.” … Graves told The Washington Post on Thursday that each time Kavanaugh testifies, he has shown “only more proclivity to lie to the Senate.”
Whether Kavanaugh returns to the D.C. Circuit or, as appears likely, is confirmed to the Supreme Court, impeachment proceedings could follow. They would be contingent on Democrats regaining control of the House, the only body that can bring an article of impeachment.
Impeachment
At the Constitutional Convention of 1787, the delegates concluded that even those holding the highest office would not be above the law, birthing the American system of impeachment.
Under the Constitution, the president, the vice president and “all civil Officers of the United States” (including those in the executive branch, plus federal judges) may be removed from office for “treason, bribery, or other high crimes and misdemeanors.” The procedure for impeaching a president or a federal judge is broadly the same.
There are two parts to the process:
The House is entrusted with the responsibility of voting on impeachment. Its members decide by a majority vote.
Then the Senate holds a trial for the underlying misconduct. A conviction requires two-thirds of the Senate, or 67 votes. If there is a conviction, the Senate removes the individual from office.
How likely is Kavanaugh’s impeachment?
“It’s as likely as the Democrats winning the House,” said Jed Shugerman, a professor at Fordham University School of Law.
“If they take back the House, I would be surprised if they don’t put forth impeachment proceedings in the next Congress,” Shugerman told The Washington Post.
“At the moment,” according to the Cook Political Report, “Democrats are substantial favorites for House control.”
Even then, though, Shugerman called Kavanaugh’s removal “exceedingly unlikely,” given the supermajority threshold in the Senate. But there are 51 Republicans and 49 Democrats in the Senate, where Republicans maintain a 7-in-9 chance of keeping control, according to FiveThirtyEight’s calculations — leaving no window for the Democrats to gain a supermajority, even in a best-case scenario.
The “supermajority” threshold for removal is exceedingly high by design: The delegates crafted it to prevent politics from driving the outcome, instead ensuring any misconduct was offensive enough to have bipartisan support for removal.
Nineteen federal officials — including 15 judges and two presidents — have been impeached, but fewer than half have been removed by the Senate, because of the supermajority standard. … Only one sitting Supreme Court justice — Samuel Chase — was impeached, on charges of being too partisan in 1805. As with Johnson and Clinton, Chase was acquitted by the Senate and continued to serve.
What are judges impeached for?
There isn’t a clear definition of “impeachable offense,” though historically that is often framed by statutory felonies and involves a significant abuse of power, according to Shugerman, an expert in constitutional law. “Current culture has also changed our understanding of what an abuse of power is,” he said.
In 1970, arguing for the impeachment of Justice William O. Douglas, then-Rep. Gerald Ford (R-Mich.) defined impeachable offenses as “whatever a majority of the House of Representatives considers it to be at a given moment in history. … Something less than a criminal act or criminal dereliction of duty may nevertheless be sufficient grounds for impeachment.”
Douglas was never impeached; the hearings held by the House Judiciary Committee produced no credible evidence and concluded without a vote.
What’s clear, however, is that perjury is a significant offense, especially for a judge.
The question of lying under oath is particularly important for someone who would be or is a member of the judiciary, according to Graves. A judge, she said, is a symbol of integrity and the law. To the extent that a judge’s integrity is tainted, it disables that person from being able to continue as a judge. “Lawyers are officers of the court,” Graves told The Post. “Courts rule on matters and assess witness credibility all the time, so honesty, integrity and truthfulness are paramount qualities for a judge.”
This principle is evidenced by prior successful judicial impeachment proceedings: Alcee L. Hastings was impeached and removed from the bench for perjury in 1988. (Hastings now serves in
Congress, as a Democrat representing Florida’s 20th District.) Walter L. Nixon was impeached and removed for lying to a grand jury in 1989. Most recently, Thomas Porteous Jr. was impeached and removed for committing perjury on financial disclosures in 2010. Clinton’s impeachment was also based on his alleged lying under oath during a deposition, a proceeding that Kavanaugh was intimately familiar with from his time working on special prosecutor Kenneth W. Starr’s investigative team.
Kavanaugh is almost certain to be confirmed Saturday — exactly one month before the midterm elections.
If Democrats take control of the House when the next Congress is sworn in come January, it’s possible the House Judiciary Committee would quickly move to investigate Kavanaugh and draft articles of impeachment. Rep. Jerrold Nadler (D-N.Y.), who would chair the committee, has already said he would support such an action.

5 October
Collins and Manchin Will Vote for Kavanaugh, Ensuring His Confirmation
Friday’s vote ushers in 30 hours of debate before the Senate takes its final vote on Judge Kavanaugh. It came as senators were still absorbing the results of a confidential F.B.I. inquiry into allegations of sexual assault against the judge — claims that have torn apart the Senate and divided the nation.

4 October
NYT editorial: How Brett Kavanaugh Failed
And why the Senate should vote to keep him off the Supreme Court.
It is a terrible reality that, at this point, either confirmation or rejection of Judge Kavanaugh’s nomination by a narrow and overwhelmingly partisan margin will dismay and anger millions of Americans. But only by voting no, by asking Mr. Trump to send someone else for it to consider, can the Senate pass its test of institutional character and meet its obligation to safeguard the credibility of the Supreme Court.
Trump’s Unusual Strategy on Kavanaugh Worked
Though he’s typically spoiling for a fight, President Trump pulled his punches early in the fight over the Supreme Court nomination.
(The Atlantic) With the report completed, it became clear how limited the FBI’s scope had been. Agents did not interview Kavanaugh or Swetnick, despite Trump’s comments on Monday, nor did they interview Ford. (The stated rationale was that both Kavanaugh and Ford had testified under oath in public.) They did interview Deborah Ramirez, who says Kavanaugh exposed himself to her, but they did not speak to a range of potential witnesses who tried to get in touch. The specific contents of the report are confidential and being kept under lock and key.
This represents an unusually wily approach from the administration—though not one that is any more transparent or honest than the typical standard for this White House. Trump’s comments in recent days and the strict limits on the FBI report all suggest the president never seriously considered the allegations against Kavanaugh, and never intended for their (sic) to be a comprehensive investigation. Yet by taking a conciliatory tone publicly, Trump was able to soothe—or at least avoid further inflaming—tempers.
The Kavanaugh Nomination Careens From Crisis Towards Calamity
By Steve Denning
by confirming a justice whom more than 2,400 law professors deem disqualified for the appointment, the Republican leadership will have gravely damaged two of the cornerstones of the nation: the authenticity and integrity of the Supreme Court and the rule of law itself.
(Forbes) As more than 2,400 law professors of both political parties sign a petition stating the obvious legal fact that Judge Kavanaugh’s behavior at last week’s hearing of the Senate Judiciary Committee “displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land,” the Republican leadership is forging forward with Judge Kavanaugh’s nomination, ignoring the legal, moral, political and institutional perils that lie just ahead. …
Since his elevation to the bench in 2006, Judge Kavanaugh’s conduct on the bench has been generally exemplary, as he apparently put behind him his partisan past and generally upheld the objectivity of the judiciary. The hearings for his elevation to the Supreme Court in early September were contested, but Judge Kavanaugh remained calm under intense questioning and any real views he might have about key issues were not revealed during the ordeal. At the conclusion of the hearings, there were reasonable prospects of the Republican leadership achieving some or all of their goals.
On September 12, the scene changed unexpectedly with the emergence of the accusation of sexual misconduct….
In its actions over the next 11 days, the Republican leadership jeopardized all of its goals by breaking the four rules of crisis management. It failed to recognize the crisis as a crisis. It failed to get out all the relevant information as early as possible, rather have it dribble out in intriguing little bits and pieces. The Republican leadership continually shifted its position as to what was involved, all the while acting as though it was engaged in a cover-up. …
Judge Kavanaugh opted to come to the hearing with a written statement that was angry and confrontational, replete with partisan conspiracy theories, unsupported by evidence. It was his premeditated decision to take a confrontational stance from the outset that raised the central question of judicial temperament.  Judge Kavanaugh even implicitly threatened the Judiciary Committee that “what goes around comes around.”
The hearing thus provided an answer to the lingering question as to whether Judge Kavanaugh’s partisan past was truly behind him and whether he might, once elevated to the Supreme Court, act in a partisan manner and reopen long-settled legal precedents such as Roe v Wade.

3 October
The Senate Should Not Confirm Kavanaugh Signed, 2,400+ Law Professors
‘This is march or die’: Kavanaugh urged to hit back hard
Allies push for an aggressive offense even as some concede that confirmation to the Supreme Court is an uphill battle.
(Politico) The uncertainty surrounding the nomination has Republicans and Democrats alike headed into the week raising the stakes of its outcome to a make-or-break moment for their chances of victory in the midterm elections.
“There’s no walking this thing back,” Steve Bannon, the former chief White House strategist, said in an interview Sunday night. “You get Kavanaugh, you’re going to get turnout. You get turnout, you’re going to get victory. This is march or die.”

28 September
Alan Dershowitz Urges Delay Of Kavanaugh Confirmation Vote For FBI Probe
“All sides have an interest in a full and thorough examination of these serious charges,” the Harvard law professor wrote for Fox News.
American Bar Association and Yale Law School Urge F.B.I. Inquiry Into Kavanaugh

27 September
Frank Bruni: Christine Blasey Ford’s Riveting, Persuasive Testimony
She was afraid. She was strong. She was human.
She was neither overly rehearsed nor cavalierly unprepared. She was specific. She was polite. She expressed frustration, even contrition, when she didn’t immediately comprehend a question and glanced around for clarity.
What registered most strongly about her was an understandable tremulousness, a complete earnestness and a commitment to only those assertions she felt full confidence about.
Once Christine Blasey Ford’s Humanity Was on Display, It Was All Over
(The Atlantic) Testifying before the Senate, she showed what American politics might look like if Americans truly saw the people our society usually silences and grinds underfoot.

23 September
Brett Kavanaugh Is Probably a Goner Now
(New York) Brett Kavanaugh’s primary and most plausible defense against the charge that he sexually assaulted Christine Blasey Ford was that Brett Kavanaugh would never do such a thing. His life showed he was straitlaced and studious, respectful of women, and had a long trail of female acquaintances who could vouch for his character.
A new revelation by Jane Mayer and Ronan Farrow of The New Yorker explodes that defense. … Mayer and Farrow further subvert Kavanaugh’s generalized defense, by quoting classmates skeptical of the testimonials that were procured on his behalf. Two of Kavanaugh’s former classmates dispute the general account of his social scene. One of those people, Elizabeth Rasor, claims that conservative writer Mark Judge, a character witness for Kavanaugh, has been outright lying.

17 September
The case for delaying vote on Kavanaugh gets a lot more obvious
(MSNBC) the judge’s official line is that the incident in question simply never happened and that his accuser is lying.
And that pushes us away from a debate about holding someone responsible for alleged actions from his past and into a debate about holding someone responsible for their current actions. If Kavanaugh is lying now about an alleged attack on a teen-aged girl, there’s simply no credible way this dishonesty can be dismissed by senators as irrelevant.

13 September
Patrick Leahy: Brett Kavanaugh misled the Senate under oath. I cannot support his nomination.
(WaPost) I make no claim that Kavanaugh is a bad person. But when his prior confirmation to our nation’s “second highest court” was in jeopardy, he repeatedly misled the Senate when the truth might have placed that job out of reach.

10 September
Kavanaugh accused of ‘untruthful testimony, under oath and on the record’
(MSNBC) Lisa Graves, whose materials were stolen as part of the Republican theft at the time, wrote a brutal piece for Slate the other day: “Even if Kavanaugh could claim that he didn’t have any hint at the time he received the emails that these documents were of suspect provenance – which I personally find implausible – there is no reasonable way for him to assert honestly that he had no idea what they were after the revelation of the theft. Any reasonable person would have realized they had been stolen, and certainly someone as smart as Kavanaugh would have too. But he lied. Under oath. And he did so repeatedly.”
Graves suggested that Kavanaugh doesn’t deserve a promotion to the nation’s highest court; he deserves to be impeached over his repeated deceptions to the Senate.

7 September
Confirmed: Brett Kavanaugh Can’t Be Trusted
A perfect nominee for a president with no clear relation to the truth.
(NYT Editorial Board) He misstates facts under oath, and Republicans cover for him by making it hard, if not impossible, to get the documents proving it. With the help of the White House and a personal lawyer for Mr. Bush, Senator Chuck Grassley, the chairman of the Judiciary Committee, has subverted a long-established, nonpartisan process and hidden more than 90 percent of the material pertaining to Judge Kavanaugh’s time in government.

6 September
Kavanaugh’s Hearings: Responding to a confirmation process that’s been heavily criticized for lack of transparency, Democrats on the Senate Judiciary Committee released a set of “confidential” documents from the Supreme Court nominee Brett Kavanaugh’s time in the George W. Bush administration. Kavanaugh’s stance on abortion rights has become a key issue in the hearings, as Democrats try to mobilize voters around protecting the precedent set by Roe v. Wade.

4 September
Democrats Open Contentious Hearings With Attack on ‘Partisan’ Kavanaugh
(NYT) The verbal brawl began moments after the hearings began. Democrats, furious at being denied access to records related to Judge Kavanaugh, immediately interrupted the chairman of the Senate Judiciary Committee, Charles E. Grassley of Iowa, demanding time to consider tens of thousands of pages of documents released late Monday — the night before the hearing.
Protesters, most of them women, shouted down senators; by day’s end, Capitol Police said a total of 70 people had been arrested, including nine outside the room.
It was a chaotic start to what would ordinarily be a staid, albeit deeply consequential, process. And barring an astounding revelation, the path remains clear for Judge Kavanaugh’s ultimate confirmation — probably this month.

1 September
White House Withholds 100,000 Pages of Judge Brett Kavanaugh’s Records
(NYT) Senate Democrats said this was the first time that a sitting president has exerted executive privilege under the Presidential Records Act in order to prevent documents from going to Congress during a Supreme Court confirmation process.
Issues for Kavanaugh: The president who chose him and the court he would change
(WaPost) As Supreme Court confirmation hearings for Brett M. Kavanaugh begin Tuesday, abortion, affirmative action, religion and gay rights are among the issues at stake. But the hearings also come as the powers of a special prosecutor to investigate the president are part of a national debate, with decisions on executive power possibly awaiting the high court.

17 August
Why Are Republicans Covering Up Brett Kavanaugh’s Past?
For the first time in modern history, Senate leaders are refusing to request a Supreme Court nominee’s relevant papers.
(NYT editorial board) Mitch McConnell, the Senate majority leader, and Chuck Grassley, chairman of the Judiciary Committee … [are] now running the most secretive and incomplete confirmation process in modern history. They scrambled to set the start of Judge Kavanaugh’s confirmation hearing for Sept. 4, even as they have refused multiple requests by their Democratic colleagues to see more than one million documents covering his years as White House staff secretary to President George W. Bush. Judge Kavanaugh has called that job, which he held from 2003 to 2006, “the most interesting and informative” of his career in terms of preparing for his work on the bench.
These documents could contain important information about his role in some of the Bush administration’s most controversial actions, including its warrantless wiretapping program and its torture policy. Judge Kavanaugh was evasive during his 2006 confirmation hearing for a seat on the federal appeals court in Washington, D.C., where he currently sits. He denied any involvement in those policies, but Democratic senators have long believed that his answers to them were, at best, misleading. And at least one former Bush official appeared to directly contradict him.

9 – 11 July
People Will Die if He Is Confirmed.’ Students and Alumni Press Yale to Condemn Supreme Court Nominee Brett Kavanaugh
(Fortune) Yale Law School may be proud to add another Supreme Court Justice to its long list of alumni, but many others do not share the sentiment.
After the school shared a press release lauding Brett Kavanaugh’s nomination, over 200 students, staff members, and alumni of Yale Law School signed an open letter condemning the press release and calling on the school to rescind its support.
Democrats Zero In on Kavanaugh’s Defense of Presidential Power
(NYT) Democrats who once saw health care and abortion as their best lines of attack against Judge Brett M. Kavanaugh, President Trump’s Supreme Court nominee, are recalibrating their approach to go after him for his view that a sitting president should not have to answer questions in a criminal case, much less face indictment.

The NYT editoral board | There’s So Much You Don’t Know About Brett Kavanaugh
In the meantime, what should senators ask Judge Kavanaugh?
First, the questions everyone wants answered: What is his judicial philosophy? How does he approach interpreting the Constitution and statutes? Does he agree with the decision in landmark Supreme Court cases like, say, Brown v. Board of Education, which outlawed racial segregation in public schools, or Griswold v. Connecticut, which established a constitutional right to privacy? There’s no reason, despite their protestations, that nominees for the highest court in the land can’t give the public straight answers to these questions and many more like them — several, including Chief Justice Roberts himself, did so in the past.
But Senate Democrats and others who believe in the importance of an independent and nonpartisan judiciary also need to treat these hearings as a public-education opportunity. Where once these sorts of hearings served to inform Americans about the finer points of constitutional law, now they might be used to alert them to cynical tactics of power politics. For starters, that would mean making it clear that Monday’s nomination belongs not to Mr. Trump so much as to the conservative legal activists at the Federalist Society, who have spent nearly four decades building a movement to reshape the federal judiciary and rewrite whole sections of constitutional law.

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