Thursday, September 27, 2018

Thoughts on the Kavanaugh Confirmation Hearings

What’s at stake with the Brett Kavanaugh hearings?

Even before the allegations of Kavanaugh’s sexual misconduct his hearings were important politically and legally.  Because of the political polarization and partisanship in Washington, Congress and the president have been unable to get a lot done, thereby forcing the US Supreme Court to get involved in resolving major political controversies of the day ranging from the rights of same-sex couples to marry, the constitutionality of Obamacare (Health care), reproductive rights, and a host of other issues.  The federal courts have become an alternative forum for groups to press their political issues.

For the last few years the Supreme Court has been a slightly right of center institution, divided politically 4-1-4.  There are four reliably conservative Justice appointed by Republican presidents, and four reliably more liberal Justices appointed by Democrat presidents.  Both sides vote nearly as a bloc.  In between has been Justice Anthony Kennedy, who has been a swing justice.  In the 30 years plus on the Court he has been perhaps the single most influential Justice, often casting the critical fifth vote deciding cases.  Analysis suggests that over his career he has been in the majority nearly 90% of the time.  In effect, as Kennedy votes so goes the Supreme Court.

Kennedy announced his retirement a few months ago.  The US Constitution says the president shall have the power to nominate members to the Supreme and lower federal courts, subject to the advice and consent (approval or confirmation) by the Senate.  What we are in the middle of are the confirmation hearings.

So who is Kavanaugh?
Brett Kavanaugh is currently a federal court of appeals judge and he served in the Bush administration.  An analysis of his court opinions suggest he is a conservative legally and were he confirmed to replace Kennedy, he might move the Supreme Court in a more conservative direction with a firm five votes.

But are Justices really political? 
The best political science research of voting behavior suggests that ideology increasingly matters.  The best predictor of how a Justice will vote is to look at the appointing president.  At one time presidents were less likely to consider an appointee’s views where nominating them to serve on the Court, but those days are gone.  The Robert Bork failed confirmation in 1986 changed that.  Now, given that Supreme Court justices can serve for life and that Washington is deadlocked, potentially the most significant legacy of a president is who he places on the Court.  Were Kavanaugh confirmed, Trump will now have two appointments to the Supreme Court and the impact will potentially be important.

Do the Democrats realize all this?
Yes.  They understand this and how legally and politically important this appointment is and were ready to fight the nomination originally.  But there were two other factors that made this appointment so contentious.  First, Democrats are mad that when Justice Scalia died while Obama was president the Senate would not schedule a vote on Obama’s nominee Merrick Garland.  This gave Trump an opportunity to fill the vacancy with Gorsuch.  Democrats felt that the Republicans did not play fair and there is some payback here.  But also, the 2018 elections are in the background here, and the original Kavanaugh hearings occurred under the light of how they would motivate the Republican and Democrat political bases.  My point is that the stakes were high even before the allegations of sexual harassment, but it appeared that the Republicans had the votes to confirm Kavanaugh.  Probably all of the Republicans were going to confirm, and perhaps two or three Democrats would have also voted for him.  These were Democrats up for election this year in states that Trump won as president.

How did the sexual harassment allegations change things?
First, it is too soon to tell in terms of a final vote, but it now changed the hearing into even more of a political issue, as well as a question of what it means to be fit to be a justice. 
By that, Republicans already had a gender problem with evidence suggesting females voters were mobilized and turning against them in the 2018 elections.  The is the “me too” movement growing out of reaction to comments by Trump and accusations of sexual misconduct by famous people ranging from Bill Cosby, Harvey Weinstein, and Senator Al Franken.  Women rightly are upset by sexual harassment and misconduct by men and want action taken.
The accusations against Kavanaugh are significant, especially how that there are multiple  accusations.  Republicans are in a bind.  They want to confirm Kavanaugh and move the Court to the right, and this is something of big interest to the Republican political base, especially the evangelical Christians.  However, public opinion is suggesting Kavanaugh is unpopular and women especially oppose him.  Pushing Kavanaugh runs huge political risk that women will vote for Democrats and flip both or either the House or Senate and put them in charge.  The issue or question is it worth the political risk, do you push for Kavanaugh and move the court to the right and take a chance that might put your party out of office?  Also, if Republicans lose control of one or both houses of Congress, this has big implications for Donald Trump in terms of legal investigations against him.

What can we expect in the hearings?
In addition to everything I have already said, hanging over this hearing is the image of the 1991 Clarence Thomas Supreme Court confirmations hearings when the Senate heard allegations  from Anita Hill regarding sexual harassment by Thomas.  While Thomas was confirmed, it left a big legacy. It mobilized female candidates to win big in 1992.  But it also created an image of a bunch of old white men who were out of touch not treating sexual harassment seriously.  The Republicans want to avoid these problems this time.  They want to protect Kavanaugh and make it look like there is a fair hearing while also not upsetting women.  That is why they have hired a female prosecutor to question Dr. Ford.

Will this solve the optics or image problem?
It is not clear but doubtful.  First, prosecutors often act like prosecutors and this is an issue here. Will the prosecutor hired by the Republicans put Dr. Ford on trial and grill her hard.  It could blow up in their face.  Second, how will she or the Republicans treat Kavanaugh and how will he respond?  In effect, who will be perceived to be put on trial.
I think the Republicans have already made major mistakes in this hearing.  They announced no FBI hearing to review the allegations of Ford and others.  A Senate hearing is a horrible place to do this type of fact-finding.  Second, they seem unwilling to allow other accusers to testify, or at least are not giving them sufficient time to stte their case.  Third, the Senate has scheduled a vote for Friday and that vote, along with comments by many Republicans, suggests that they have already made up their mind and the testimony, whatever it will be, will not change their minds.

Could the hearing end the Kavanaugh candidacy?
Maybe.  There are two big differences from Anita Hill.  First, 27 years have passed and American culture has possibly changed.  It is possible sexual misconduct allegations now mean something that they did not back then.  Second, Anita Hill and Clarence Thomas were Black, Kavanaugh, Ford, and the other accusers are white.  Race is not a factor here and it may be harder to discount claims by white women.

In addition, female Republican Senators Collins and Murkowski seem troubled by the Kavanaugh accusations, and if they flip Kavanaugh might lose a final Senate vote if there is an otherwise straight party-line vote.  The sexual misconduct allegations may give enough political cover to some of the Democrats up for re-election in Trump states to vote against Kavanaugh.

Before a floor vote, the Senate Judiciary committee must vote.  This is Friday.  In theory the committee could vote not to confirm and kill the nomination there.  Another possibility is a vote to confirm and send to the full Senate, a third is a vote with no recommendation and send to the full senate.  In 1991, the Senate Judiciary sent the Thomas nomination to the full committee without a recommendation.  Barring a really bad hearing, I doubt the Republicans will let the Kavanaugh appointment die in committee.

Final thoughts?

There is not fixed answer regarding what it means to be qualified to be on the Court.  Aside from all the political issues, the tough question is where and how do these allegations against Kavanaugh, even if true, fit into determining whether he is qualified to sit on the Supreme Court.  Legal skills and judgment obviously should be factors, but how one assesses character is difficult, and this is a major issue here too.

Wednesday, September 19, 2018

The Case of Brett Kavanaugh: What does it mean to be Qualified to be a Supreme Court Justice?

Imagine that Supreme Court judicial nominations and confirmations were non-political.  Here the
  president nominated  the best qualified candidate regardless of politics  and the Senate treated its advice and consent role seriously.  Were that the case, is Brett Kavanaugh qualified to be a Supreme Court Justice?
The question of course hinges on what it means to be “qualified?”    Recently I did a radio interview on the second day of the Kavanaugh confirmation hearings and said that he was “probably” qualified to be a Supreme Court Justice.  Almost immediately I received an email from a partisan Trump supporter excoriating  me for using the word “probably.” It apparently was clear to him well before the hearings had finished that Kavanaugh was qualified, no matter what the rest of the hearings would tell us.  I responded by saying my use of the word was to suggest that until all the information was in and hearings were over I could not reach a final conclusion on whether he was qualified.  One needed to keep an open mind and listen to all the testimony and not pre-judge someone based on partisanship or ideology. 
Unfortunately, this person was not atypical–the Kavanaugh hearings thus far did little to provide information on his qualifications and few if any Democrats and Republicans on the Senate Judiciary Committee, the Senate as a whole, or even the public in general, seem to have been influenced by the testimony and evidence.  The Kavanaugh hearings were merely the overture for the 2018 elections.  But now with the accusations of sexual assault the outcome of the Kavanaugh confirmation is open, and it renews the question–what does it mean to be qualified to be a Supreme Court Justice?
Qualified is not defined anywhere in the Constitution–there is no language in Article II, Section 2 that directs what  presidents should consider when making judicial appointments, the same is true for what senators should consider when offering “advice and consent.”  This renders  “qualified” a matter of political judgment, leaving open the factors to be considered.
To be qualified starts with technical skills–knowledge of the law, legal reasoning, past experiences, including as a judge.  By those accounts Kavanaugh is qualified–even highly qualified as a judge according to the American Bar Association.  If being a judge were simply a merit  system and politics or ideology were not factors affecting the courts, then perhaps a discussion of  Kavanaugh’s qualifications would end here.
But it does not end here.  Political science research shows that the ideology of judges often matters in decision making.  As Judge Richard Posner once said about Robert Bork when the latter was nominated to the Supreme Court, judges are not potted plants.    Judges have to make difficult calls that demand good judgement (that is why we call them judges).  Judging is not purely mechanical and value free, if it were we could replace judges with computers.  Thus, even without politicizing the judiciary, more than mere technical skills are necessary to determine the qualifications of one to be a judge. 
One’s judgment or views matter.  Would it not be valid to consider whether a judicial nominee believed in civil rights for all?  The Bork hearing was political, but political included a question regarding whether his views were within the accepted mainstream of legal orthodoxy.  Justices on the Supreme Court are trustees for the Constitution because they interpret it, and part of advice and consent by the senate should be to determine whether a nominee can be trusted to serve in that trustee role.  There is no way one can ask nominees about all issues they may confront as a justice, at some point it is about whether one can trust their judgment.  Thus, character matters too as part of ascertaining qualifications or fitness to serve.
One of the toughest issues is determining what factors in one’s private life, in any, are relevant to  public service (or for any job).   Does it matter that one drinks, smokes, or holds certain opinions?  At one time infidelity, being a member of the LGBTQ+ community,  or doing a marijuana joint was considered relevant and a strike against a candidate.  It is less clear where and whether these factors hold as much sway as they used to.  Moreover, where do we place past acts, especially bad ones, in terms of judging one’s present character.  Do acts committed one, five, ten, or 30 or more years ago speak to one’s present character?  Sometimes yes, sometimes no.  People change, mature, or evolve,  and sometimes not.  Aristotle referred to character as “habits of the heart.”  Doing something once does not necessarily speak to our character, but when it becomes a habit it does.
But now think also about the concept of mercy and forgiveness. As eloquently stated in Shakespeare’s Merchant of Venice: “The quality of mercy is not strained.”  By that, should all of us not be entitled to forgiveness and a second chance?  In the case of Kavanaugh, let us assume the allegation of sexual assault against him is true and assume he had been convicted of a crime and paid his legal debt to society.  Should we not forgive him and look at the rest of his life to determine whether he is qualified, or does one bad act disqualify him for life?  For many who say we need to give ex-felons a second chance, the answer would be to give a second chance, but one still needs to place this one bad act within a larger picture to ask what it says about his character.  In some cases, one bad act may be disqualifying, in others not.
But here, Kavanaugh is accused of a bad act,  and assume even that the allegations are true, does this behavior render him unqualified to sit as a Supreme Court Justice?  There are competing answers taking us in different directions, suggesting even under an ideal situation there is no clear answer to what it means to be qualified to sit as a Justice.

Saturday, September 8, 2018

The Irony of Donald Trump–The System Works

Perhaps one of the most overused phrases in the news and among commentators is the phrase “constitutional crisis,” especially as it applies to a cluster of issues surrounding the Donald Trump
presidency including whether he can be indicted or if, as an anonymous NY Times op-ed asserts, administration officials are part of a resistence to limit his action. I am not sure what the term means, but there is no constitutional crisis when it comes to Donald Trump, the “system” is working.

A constitutional crisis means a situation where the Constitution and the laws cannot handle or address a specific situation and we are left totally with non-constitutional solutions to address a problem.  I do not see that   here.  When Trump was first elected, I began giving a series of talks that continue to today.  In those first talks I said that there was something remarkable the day after the election–there were no tanks in the streets or troops on the corner.  I said that what will largely happen is that the Trump administration will confront this nasty thing called the Constitution and the Bill of Rights and both will largely do their job.   Lacking government experience and an inclination to want to learn, Trump would face the checks and balances and separation of powers limits that the Constitution imposes.  Moreover, for Trump to get anything done he and his administration needed to secure the assistance of the 3,000 or so members of the Senior  Executive Service–SES–the careerists who really run the federal government.  Finally, were Trump to exceed the political boundaries of what Americans could tolerate, elections would be the final remedy.  Largely, all of this is happening now.

Now 18 months later it is happening.  Legal investigations are tightening the noose around Trump. His and the Republican overreach and ineptness will produce electoral results that will hold him Trump accountable, or at least check him, and the complex system of administrative law and members of the SES or the bureaucracy also are checking the president.  All of this is consistent with the Constitution and its design.

Additionally, as the special prosecutor finishes his investigation, we may soon find Trump and others facing criminal charges.  If a sitting president can be indicted for federal crimes, then the criminal justice process will render a final verdict.  If a sitting president cannot be indicted–and we do not have a clear answer to that question–then possible impeachment or simply voter retribution against him or Republicans may occur.  Trump of course can pardon those accused of committing federal crimes, but he cannot issue pardons for impeachment, civil action, or state crimes.  It is also unlikely anyone would seriously argue the president can pardon himself.

Even if Trump were to fire the special prosecutor, he cannot remove the federal career prosecutor in New York who went after Michael Cohen, and even if he does fire him, Trump cannot fire the Manhattan Borough district attorney or New York State Attorney General who are investigating charges against Trump and his foundation.  It is also an open legal question regarding whether a sitting president could prevent facing state criminal charges.  And the Supreme Court has already ruled that a sitting president can  face civil law suits.  Federal courts have already ruled against Trump on many key issues, and more adverse decisions will come.  Overall, regarding of who sits on the Supreme Court, Trump will face monumental legal challenges that have already checked much of his behavior. 

Even if the legal process breaks down, the final verdict lies with the people.  Barack Obama said it well in his Friday, September 7, 2018 speech when he said that: “Because there is actually only on real check on bad policy and abuses of power, and that's you. You and your vote.”  Elections are the ultimate check on abuses of power, and they are provided for in the Constitution.  Trump's overreach appears to be producing renewed interest to vote and perhaps will yield significant Democrat Party  turnout that will correct and check the worst of the abuses.  2020 may too be another verdict.

The Constitution is proving to be able to address or anticipate many of the problems we are seeing.  I do not see a constitutional crisis. Maybe there is a political crisis but not a constitutional one.    The Constitution is mostly a process document, not one of substantive public policy.  Yes Trump and Congress have enacted many ugly policies that hurt people.  When I say the system works, I do not mean it produces the policy outcomes that I want or which liberals may desire.  The system is working for many of the ways it was designed to work.  The Electoral College is by today’s standards undemocratic but it may be working the way it is supposed in the sense that it checks populism.  Moreover, as Sandy Levinson makes clear in his book on  Our Undemocratic Constitution, the Constitution was not designed to “work” in ways that produce real majority rule.  The Constitution may be working in ways it was supposed to, it is just not the way many of us like.