They Are All Up In Your Constitution, Winning Your Rights

Careful reader of this blog may remember that I consider the greatest legal genius in history to be Charles Hamilton Houston. If you don’t know who he is, well, read a book because a blog post alone won’t do it. Okay, fine. I’ll give you a bit to get started.

This is the one person more responsible than any for Brown v Board of Education (Topeka, Kansas) and the success of legal efforts to end segregation everywhere in the US. This is the one person who had not merely the legal success to argue and win that case before SCOTUS (he didn’t, as he had recently died: that was his little-known protege, Thurgood Marshall), but rather the nearly incomprehensible foresight necessary to plan literally decades ahead.

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“Not as bad as Alabama” is hardly the same thing as “good.”

So, for amusement I will periodically go catch up with my reading on the US-centric but still wildly funny law blog, “Lowering the Bar”. Recently they have been covering the case of a Judge in Texas who, because of a rarely-remembered but still operant clause in the Texas state constitution, had the misfortune of accidentally resigning the judgeship he won in an election only three months before.

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Blackstone, Crip Dyke, & The Next Nomination

William Blackstone once wrote:

all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.

The latter part has been deemed The Blackstone Formulation, being a restatement of a principle of law that goes back much further in time than the 1760 date on which Blackstone’s Commentaries on the Laws of England was published. It has reappeared frequently in different times and places, typically reworded slightly but with the numbers rarely changed. What is often lost is that we’re not actually talking here about things like whether a woman should accept a marriage proposal from a man credibly accused of beating the fuck out of his past partners. We’re talking specifically about the criminal law and whether the government is or should be empowered to end or suspend someone’s freedoms, and under what conditions that power can be exercised. The point is to encourage us to think about the consequences of acting under the guise of justice to punish those whose guilt is less than certain.

During the Kavanaugh hearings, I often found myself screaming that the presumption of innocence is not for confirmation hearings. But while the Blackstone formulation helps us understand why we might set a high standard for conviction (beyond reasonable doubt), simply screaming at the internet that the PoI is for criminal trials and not for confirmation hearings doesn’t explain why we should have different standards.

To this end, I want to ask a new question that might help. You can call the this “Crip Dyke’s Question” but the rule being questioned should, I think, clearly be named, “The Lindsey Graham Formulation”:

Is it better to place ten rapists on the Supreme Court than have one innocent man serve his lifetime appointment in honor and privilege on a court of appeal one level below?

Tweet the fuck out of #CripDykesQuestion. Call your senators and ask their staff members this question. Go to debates and use the audience question time (or pre-submission of questions mechanism) to place this question before your senators.

This isn’t too late. This is what we have to do before the next confirmation hearing, and if we want the question to penetrate the public consciousness, we must start now.

NYTimes: Kavanaugh’s nomination would have been defeated if only some survivors stayed silent

So, the NY Times has a theory which is theirs: Julia Swetnick’s sworn statement is responsible for Kavanaugh’s confirmation. From the article:

The Republican senators got into a lengthy conversation about Mr. Avenatti and how he could not be trusted and concluded that Ms. Swetnick’s claims did not add up. Why would she as a college student repeatedly go to high school parties where young women were gang raped? No one came forward to corroborate the allegation, and news reports surfaced about past lawsuits in which Ms. Swetnick’s truthfulness was questioned.

“This was a turning point,” said Senator Lindsey Graham, Republican of South Carolina. “That allegation was so over the top, it created a moment that was scary, quite frankly. But that moment was quickly replaced by disgust.”

… One Republican congressional official called Mr. Avenatti’s involvement “manna from heaven.” From the other side, a Democratic congressional official called it “massively unhelpful.”

So there you have it: don’t go to the wrong parties, if you’re going to be raped, make sure that you have sympathetic witnesses, and if you hire the wrong lawyer, then when justice doesn’t happen, it’s your fault. Of course, they don’t actually identify even one yes vote by someone who would have voted against Kavanaugh if only Swetnick had shut up like a good girl, much less the two that would have been necessary to change the outcome. But that’s not what’s important. What’s important is don’t speak up, unless you speak up a little bit, politely, about things that are appropriate dinner table conversation. Otherwise when injustice happens, it’s on you. Because goodness knows that if women were just encouraged to shut the fuck up a little bit harder, we wouldn’t have a perjurer and probable sexual assault perp sitting on the Supreme Court of the United States of America.

So if you’re thinking about speaking up about the assault that happened to you, think again: you’re probably just making things worse. Our newspaper of record has said so.

Dishonest or Incompetent?

I’ll make clear again from the outset that I believe Dr. Blasey Ford’s allegation of an attempted sexual assault by Judge Brett Kavanaugh. I further believe that this is entirely sufficient to deny him confirmation to SCOTUS.

That said, I think that the more effective tactic to take in the media if one wants to get the sexist Republican Party senators to vote against his confirmation is not to stress Dr. Blasey Ford’s testimony more than it has already been stressed. No, it should continue to be covered at similar levels to now, but what needs to be ramped up isn’t that. It’s the argument that Kavanaugh’s testimony is by itself also sufficient reason to deny his confirmation. The Intercept (a publication for which my respect declined in proportion with the decline in my respect for Glenn Greenwald, but which nevertheless does publish some – perhaps many – good things) has taken a similar tack. In a recent piece, Intercept authors Briahna Gray and Camille Baker attempted to demonstrate to non-lawyers and non-law students just how damaging Kavanaugh’s testimony on its own ought to be:

KAVANAUGH’S APPARENT WILLINGNESS to perjure himself over accusations of underage drinking or sexual innuendo — which, alone, don’t necessarily bear on his suitability for the bench — is troubling both because of what it implies about his integrity, and because of what it suggests about his reasoning as an adjudicator.

How should we judge someone who, during his testimony, repeatedly misrepresented facts and dissembled when pressed for detail? Should we understand these moments as lies, or as misinterpretations rooted in substandard analytical rigor? And given the importance of the position at hand, which is worse?

Note that here, if you’re not certain since they weren’t explicit, they’re trying to say that the excuse of misunderstanding a question does not save Kavanaugh. If he can’t parse the meaning of the questions as asked because of his own filters, then he won’t be able to parse other questions or statements that are necessary to resolve the questions at issue in cases that come before SCOTUS. Back to the Intercept:

Some of this may seem like parsing hairs, but the law, in large part, is parsing hairs. Easy questions don’t make it to the Supreme Court. Slam dunk cases settle out. Outside of constitutional issues, the Supreme Court only agrees to hear cases that are so subject to interpretation, they’ve been inconsistently decided between states or federal circuits. Analytical precision, therefore, is a big part of the job.

That being the case, it was concerning to hear a federal judge clamor for “due process” as he sidestepped an opportunity to call witnesses, hear evidence, or have his name cleared by a federal investigation. How should we view a federal judge who seems not to understand, or who for political reasons ignores, that he is not, in fact, on trial, but at a job interview? Who, either due to a lack of understanding or a surfeit of political ambition, emotes as though the stakes were that of a criminal proceeding where the high burden of proof would militate in his favor?

“DUE PROCESS” MEANS fair treatment under the law — that an accused person has notice of the proceedings being brought against them and an opportunity to be heard before the government takes away their life, liberty, or property. The fundamental goal of due process is to prevent the state from depriving people of their most precious freedoms. But Kavanaugh isn’t threatened with any of those deprivations. He’s not facing jail time, a fine, or any confiscation of personal goods. The stakes are these: whether he will go from sitting on the bench of the second most prestigious court in the land, to the first.

What matters, then, is whether Kavanaugh is of sufficiently fit character to fairly and ethically interpret the law. Thursday’s hearing, perhaps as much as the allegations against him, has thrown that into serious doubt.

Aside from the terrible phrase “parsing hairs”, Gray and Baker are dead on here. I expect the Republicans to ramble on about how bitches dems be lyin, and I think that they’ve frankly committed themselves to the fallout of their overt sexism and their overt stand against the idea that committing sexual assault might make one less fit for a seat on SCOTUS. However, I don’t think they’ve yet taken a stand to the effect that dishonesty under oath should not make one less fit for a seat on SCOTUS, nor do I think they’ve even thought about the ramifications of attempting to deploy the excuse of Kavanaugh misunderstanding questions.

Hammer your senators on the import of Blasey Ford’s testimony. However, if you’re calling your senators, I think you should also hammer them on these important issues of Kavanaugh’s dishonesty and his inability to parse important questions when the stakes are high.


[h/t to Mano for bringing the Intercept piece to my attention. I don’t normally read the website except when another outlet links to it and would never have found it without the writing of my FtB colleague.]

 

 

 

Rage and Sickness

It’s hard to know what to say this morning, after Kavanaugh’s nomination to former Justice Kennedy’s seat on SCOTUS received the endorsement of the Republican-controlled US Senate Committee on the Judiciary. I feel rage. I feel nausea. But merely expressing those feelings isn’t nearly enough. Even voting this November, while necessary, isn’t nearly enough. The Republicans have most blatantly betrayed the principles they claim to espouse and at the same moment betrayed the people they represent, the traditions of the Senate, the Supreme Court, and even the more abstract course of – and frankly possibilities for -justice in the USA. We must understand both the magnitude of the Republican betrayal as well as its motivations and its methods.

This can’t be the post that does that. There will be many books written about those topics by persons far more knowledgeable than I. But I know enough to appreciate some of the magnitude, motivations, and methods, and even something as lowly as a pseudonymous blog post can be part of the initial efforts to understand these things. This post won’t do much in that department. I will write more later today and certainly even more over the weekend. But right now I encourage you to think not of my rage or sickness, but of that of Republicans generally and Republican Senators specifically.

Lindsey Graham has been called out, most appropriately, for his outbursts in yesterday’s Republican debacle. His rage is quite visible, quite audible. If like mine your skin tightens and your hairs stand while listening to his wounded aggression, his rage is palpable. But what is the content of that rage? It is most certainly complex (in ways future books will show), but the lions share is visible to all: he rages at checks upon his powers and prerogatives. I submit that much of the Republican Senatorial rage is similar. He takes personally the idea that he must pay a political cost in voting to confirm the nominees that will enact his anti-woman, anti-abortion agenda. With Republicans the majority in the Senate, he expects to be able to pack SCOTUS. With Kavanaugh rendered obviously unfit due to the petty lies in his testimony that would make him a perjurer even were he entirely innocent of the assault on Dr. Blasey Ford and also by the partisan temper and conspiratorial thinking on display in yesterday’s testimony, there is little time left for Trump to nominate anyone new before the midterms. He has the majority right now, but his power to do as he wills to the future of the US Constitution, its judiciary, and its practice of justice is hedged, impinged. It is not even eliminated, as shown by the committee’s vote this morning, but it is made both difficult and politically costly by the nation’s witness of Blasey Ford’s testimony and Kavanaugh’s pettiness, dishonesty, and entitlement.

The sickness, well: there’s never been a time when the Senate hasn’t been sick. Classism, sexism, and racism (just to name 3) have plagued the Senate since its inception. Yet the Senate has made progress. Now instead of simply dismissing the idea of a woman Senator of south-east Asian dissent, we actually have a couple! We just don’t let them use the private elevator. With so much distance between 1789, cultural as much as temporal, it’s easy to imagine that change as gradualist. But the change in Senators’ votes and positions over time, while constant, differs vastly in rate at different times. Sometimes the change does seem to move us toward a better society. Other times it moves us distinctly backwards, undoing positive changes that came before. But more frequently than moving backwards, it does neither of these things: changes move us towards a worse, more unjust society, but not the same unjust society as years before. When I can better organize my thoughts, I’ll talk more about the sickness I see today that is different from the sickness I saw 27 years ago when the Senate tormented Anita Hill. But for now, I will satisfy myself by saying that I believe this is one of those times. The Senate is developing new symptoms of disease rather than merely re-experiencing some that had been in remission.

To say what must be said will take us years, so let us act first, even as we are uncertain of the details of any necessary solutions, even as we are uncertain of the details of all the present problems. Contact your US senator, if you have one. Do what must be done even if it seems all hope is lost. Do your Dylan Thomas. Learn your Edmund Burke. Together we will become our Margaret Mead.

 

The NYTimes & I Agree on Something

So, you may have read my recent post asserting that we need not focus on, much less prove, Christine Blasey Ford’s allegation of sexual assault against Brett Kavanaugh to justifiably oppose, even strongly oppose, his confirmation. Law professor Kate Shaw of the Cardozo School of Law at Yeshiva University has written an editorial for the NY Times that agrees with me in certain important ways, though she does implicitly place more importance on Blasey Ford’s allegations than I do.

She also adds something that I did not when I stressed Kavanaugh’s likely perjury during his own confirmation hearings – both his earlier hearings for a lower bench and also the current hearings on his nomination to SCOTUS. Whichever charges we deem most important – perjury over the past week or sexual assault 36 years ago – Kavanaugh is not being criminally tried and the standard of evidence thus shifts dramatically. Even the burden of proof shifts, though more subtly:

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Highlighting Wonkette Wisdom

There was a bit in a piece by Wonkette writer Robyn Pennacchia that was too good not to signal boost:

I have a theory on why women are the primary audience for true crime, for why we are the primary audience for crime procedurals. It’s because justice, for us, is a kind of escapism, it’s a kind of fairy tale — about as likely to happen in real life, to us or to anyone we know, as a pumpkin turning into a carriage. Nearly every single woman I know who has reported a rape or a sexual assault to the police has been told, more or less, to fuck off, nearly every one has been retraumatized. We have hundreds of thousands of untested rape kits, just hanging around in warehouses.

I, too, have watched hours of Law & Order in its original and SVU incarnations. I, too, have come to the conclusion that the criminal justice system is aptly named. How do I combine a dislike of how rule of law is exploited to produce its opposite and along the way perpetuate injustice after injustice with an affection for shows such as this? It’s exactly what Pennacchia said: fantasies can be as comforting as fresh baked bread.

Kavanaugh’s Nomination Should Fail, But Not Necessarily For The Reasons You Think

Just now there is a fucktonne of writing being produced about Brett Kavanaugh’s assault of Christine Blasey Ford. Here’s one on FtB. Here’s another. You can read them and the thousands of others like them if you wish. I’ve read some. I’m not going out and seeking more, because I’m not convinced that Ford’s allegation, even if proved true in every detail, is the best reason to kill Kavanaugh’s nomination.

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Will You Fucking Stop With This Silver Lining Shit?

So many people are suddenly writing pieces about how overturning Planned Parenthood v Casey (which is, in fact, the controlling precedent on abortion now), queer marriage, and anti-discrimination laws are a losing strategy for the GOP to put a shiny, happy face on the transformation of SCOTUS.

NO. If you’re tempted to go with this reaction, stop it right the fuck now. We do not sit back and let the Republicans enact hostility and hatred. It’s not even that there’s no truth in the position. Yes, inevitably conservative families will see relatives die. Yes, the 80% of people that support the right to have an abortion in at least some cases do constitute a large majority. Yes, if the 33% who believe that abortion should be legal in most cases and the 24% who believe that it should be legal in at least some cases could truly hurt the GOP if they voted to repudiate the fuckers.

But the implied argument is this: Ireland voted in abortion restrictions with Amendment 8 in 1983, sure, but after 35 years, innumerable hardships, and an uncounted number of deaths Ireland got the sympathetic victim of its anti-abortion policies that allowed them to overturn the provisions in 2018. These things don’t last, they’re saying. We’ll have our Savita Halappanavar, they’re saying. That makes everything okay, they’re saying.

Jesus Fried Chicken, NO!

The fact that we will inevitably have our Savita Halappanavars is exactly what makes this NOT OKAY.

Yes, the GOP has been sowing the seeds of its own destruction for decades now.

Yes, the GOP enjoyed the freedom to vote for abortion restrictions that would never be enforceable, and thus used abortion bills to rally its base while the democratic base remained unenthused because democrats never bothered to stand up and fight, relying on the courts to do their work instead.

Yes, that means that individual GOP members of state legislatures are going to have to make more consequential decisions than they have in the past, they’re going to have to face a higher likelihood of accountability than they have in the past.

THAT DOESN’T MAKE THE LIVES OF WOMEN THE GOP WILL END INTO ACCEPTABLE SACRIFICES.

IT DOESN’T MAKE THE LIVES OF TRANS FOLK WHOM THE GOP MIGHT KILL INTO ACCEPTABLE SACRIFICES.*1

NONE OF THIS IS OKAY.

THERE IS NO SILVER LINING.

 


*1: I’m well aware that people of other genders may very well die too, but given the total numbers of deaths expected, I don’t feel as comfortable saying that people of other genders are guaranteed to die, whereas demographically the deaths of women are guaranteed.