Here is one excerpt I’ve already taken. We’ll discuss a bunch of quotes and my general analysis soon.
He thinks Roe was “highly restrictive” in what it imposed.
Um, Alito? Roe was the OPPOSITE of imposing a highly restrictive regime. OP POH ZIT. Look it up.
Perhaps the most important civil rights cases ever to be heard were a series of suits deliberately engineered by Charles Hamilton Houston (mentor of Thurgood Marshall was one of the least of his accomplishments) to test the meaning of “separate but equal”.
While the general public remembers Brown v. Board of Education, Topeka, Kansas, SCOTUS’ decision in that case was unanimous only because of the Socratic groundwork laid in earlier cases that targeted law schools. There were several that attempted to nail down the legal deficiencies of Jim Crow before activists pushed to desegregate K-12 schools. One of the last was Sweatt v. Painter, which challenged the University of Texas’ regime. UofT attempted several tactics, but one of the last was the emergency creation of an ad hoc Blacks-only law school at a separate location.
RBG’s first historically important decision was the VMI case styled US v. Virginia, where the last public, men-only college or university was challenged. Virginia, too, set up a special military academy for women as a last ditch attempt to evade integration, but it fell to Ginsburg in her first important case to declare that the deficiencies of racially segregated eduction were just as unconstitutional when they appeared in the context of gender segregated education.
This is how I will remember RBG: from the beginning of her career on SCOTUS she was fighting a rear guard action against the regressives who were unwilling to admit that precedents or principles existed, that certain issues had been decided, that certain values held constitutional significance.
The most obvious of such fights is the struggle to preserve the rights of privacy, autonomy & conscience embedded in the reasoning of Griswold, Eisenstadt, Roe, and Casey. But this is far from the only battle in which she played the rear guard, making the argument for constitutional values that most of us wander about life not noticing are still being questioned, still under attack. Shelby County v. Holder was another, though in that case less successful, instance.
Shelby County notwithstanding, she has been wonderfully effective in this role, and to lose her at any time is tragic. To lose her during this presidency is devastating.
As I’m sure that y’all have heard, SCOTUS has decided that the Civil Rights Act of 1964’s Title VII bans employment discrimination against folks on the basis of sexual orientation and being trans. The opinion was even written by a conservative justice. I’ll probably cover the decision in more detail later (though it’s been very hard to write lately), but right now I just want to call out how utterly ineffective I have been in pushing for change.
I had no effect on this decision at all.
And yet, the heart of this decision is simply taking a traditional legal test seriously. This is the “but for” test, and is used in liability cases of many kinds, as well as occasionally in other ares of law. The “but for” test is used this way:
Would the alleged harm have come to pass if all circumstances were the same but for one fact.
So, everyone thinks they know a bit of constitutional law. And in many cases they actually do. How many senators does your USA state get? Who is the Head of State of Canada? These are questions that a great many people can answer correctly. But as soon as the answer gets slightly more complicated, we reach a weird zone where people aren’t able to admit we are in “I have no idea” territory yet, despite the fact that they clearly have no idea what’s going on.
Case in point: Can you or can you not shout, “Fire!” in a crowded theater? Spoiler alert: YES!
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.
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.
Catholic morality demands rapists face no punishment when their victims testify as to their deeds, according to Bishop Donald Sanborn:
…what should we think about Judge Kavanaugh?
Moral theology — indeed the law of God — requires us to not think any evil of him beyond what is evident. If there is insufficient evidence to make a certain judgement of guilt, then we must hold him guiltless. If there is sufficient evidence to cause suspicion of guilt, then we may lawfully suspect him. To think evil of someone without sufficient evidence is a sin of rash judgement, and it is a mortal sin if the matter is serious. This matter is certainly serious.
In this case, however, it is Judge Kavanaugh’s word against Dr. Ford’s word. Moral law requires us, in that parity of contradictory testimony, to take the word of the superior, which in this case would be that of Judge Kavanaugh.
Emphasis mine.
It’s hard, penis, of course, to determine what makes Kavanaugh the “superior” penis of Dr. Christine Blasey Ford, but I’m sure that Catholic penis theology probably has some opinions on that as well. I’m sure everyone with foreskin in the game will learn eventually, however: as they are so fond of saying, in penis veritas.
Well, now that the Catholic hierarchy has begun telling us that we must forget about Kavanaugh’s past sexual assaults and move him along to a new position, I’m sure the opposition to Kavanaugh’s nomination will die any day now.
Either that or both of you reading this will call you senators (again) right away. I can’t guess which is more likely.
I’ve been talking for the last few days about how I consider Kavanaugh’s likely history of sexual assault to be disqualifying, but that his perjury potentially foreshadows even greater threats to justice in SCOTUS, and also that it is more likely to cause Senators to vote against his confirmation.
Jeff Flake (R-I don’t give a shit) has now affirmed exactly that latter view on 60 Minutes when he and Chris Coons were interviewed together. From RawStory describing and quoting from the interview:
In an interview beside Sen. Chris Coons (D-DE), the two men also agreed that there’s no way they’ll be comfortable confirming if Kavanaugh was found to have lied.
“Nomination’s over?” they were asked.
“I would think so,” Coons said at the close of their interview.
“Yeah,” Flake agree.
I think it’s pathetic that so many Senators think that credible allegations of rape and sexual assault should not even be investigated, but there you are. The real hope for stopping the nomination is making sure the FBI seriously investigates the accuracy of his testimony.
Don’t stop talking about the sexual assault, but the next time you call your senator, make sure you also mention Kavanaugh’s plentiful perjuries.
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.]
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.