Kavenaugh's Rough Week

Democrats gave Supreme Court nominee Brett Kavenaugh a tough time during his confirmation hearings this week.

I have not seen much discussion of where he stands on criminal justice issues: the rights of the accused, sentencing policy, drug law, immigrants and refugees, or the death penalty. I am more interested in his positions on those issues than on whether he would potentially give Trump a legal pass by upholding a refusal by Trump to comply with a subpoena from Mueller. The Federal Defender for the District of Columbia, A.J. Kramer, will be testifying today in support of Kavenaugh (personally, not on behalf of his office). His written remarks are here.

So long as Trump gets to pick the nominee, one will just be worse than the next. That's why elections matter so much. At Vox today, a presidential historian explains Donald Trump in one sentence:

“The fish rots from the head,” he told me, “and the stench of this administration starts at the very top.”

I wrote hundreds of posts about the horrible Bush nominees for the Supreme Court and our federal courts of appeal back in 2002, 2003,2004 and 2005, especially William Pryor, Charles Pickering, Janice Rogers Brown and Priscilla Owen. I endlessly criticized the nomination of Judge Alito. (Just type their name in the search box on the right).

In re-reading a few of these posts today, this one struck me as particularly prescient.

Packing the Supreme Court with conservatives will be one of Bush's longest lasting legacies. The judicial and criminal justice systems will change markedly. Protections we have taken for granted since childhood will disappear.

There will be no reason for every child over the age of 9 to be able to recite Miranda warnings or know a cop has to have a warrant if they want to come in the house or search. They won't know these things because they won't have seen them a hundred times on tv on the cop shows. They won't be referred to on the cop shows since there won't be any more Miranda or 4th Amendment rights to speak of -- the exceptions to these principles will become the rule. Exigent circumstances, good-fath exceptions, the inevitable discovery doctrine, just wait till you see what they will think of next.

Since the Justices are appointed for life, we fear we won't see the pendulum swing back again in our lifetimes. What a legacy to leave our children. If there is one reason not to back a third party candidate who can't possibly win over a Democrat who can, this is surely it.

Back to Kavenaugh: Bush nominated him for the D.C. Circuit Court of Appeals in 2003, along with the Janice Rogers Brown, when Manuel Estrada's nomination was blocked by Democrats (he later withdrew his name). He was nominated to be the 12th Justice on the Court. During Clinton's term, the Senate wouldn't consider even a 10th Justice on that court saying its workload was too light. The New York Times wrote in 2003:

Mr. Bush nominated Brett M. Kavanaugh, an associate White House counsel, and Janice R. Brown, a California Supreme Court justice, to the 11th and 12th seats on the appeals court.

The court, the United States Court of Appeals for the District of Columbia Circuit, currently has nine active judges and Mr. Bush's choice for the 10th seat, Miguel Estrada, a Washington lawyer, has been blocked by Senate Democrats.

During the eight years when President Bill Clinton was in office, Senate Republicans insisted the court's workload was so light there was no need for it to be filled to its 12-member capacity.

The article described Kavenaugh this way:

Mr. Kavanaugh, at 38, would be one of the youngest members of the federal appeals bench. He is assistant to the president and staff secretary, and has been responsible for marshaling the fleet of largely conservative judicial nominees the president has sent to the Senate, resulting in angry battles with Democrats. But he is probably better known as a senior assistant to Kenneth W. Starr, the independent counsel who investigated President and Mrs. Clinton for a variety of issues.

Mr. Kavanaugh was one of the principal authors of the ''Starr report'' that argued that President Clinton deserved to be impeached because of how he dealt with his dalliance with Monica Lewinsky, a one-time White House intern.

Is Kavenaugh inevitable, or if he were to fail, would the next pick just be worse? Back in 2003, I urged against a Democratic response of "capitulate and embrace":

Instead of capitulate and embrace, and hold the conservative jurists to their promise of more great rulings restricting Congress and the federal courts, we advise the democrats to filibuster, early, loud and often. The only way to prevent these right wing jurists from imposing their narrow and unjust views on the rest of us is to keep them from attaining the bench in the first place.

Take note of political action alerts, write your elected officials and tell them to oppose the nomination, and remember, grass roots efforts can be successful. A Senator can serve his or her constituents only if he or she knows their position on issues. By writing to them, you become heard, and your opinion counts. We neither need nor want another Scalia, Kennedy or Clarence Thomas.

I'm not doing any of things with respect to Kavenaugh. He doesn't strike me as the worst of the worst and I'm more concerned about who Trump's next pick might be if Kavenaugh fails. The issue of whether he'd give Trump a pass on a Mueller subpoena pales in comparison to the issue of how he'll rule on matters of import from crime to the economy to the environment and immigrant rights over the 30 years.

What will I do instead? Hold my nose at the rotten smell emanating from the White House and everyone aligned with Donald Trump.

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    Intresting (5.00 / 1) (#6)
    by FlJoe on Sat Sep 08, 2018 at 03:18:54 PM EST
    article about Kavenaugh's "roots". David Brock
    Brett and I were part of a close circle of cold, cynical and ambitious hard-right operatives being groomed by GOP elders for much bigger roles in politics, government and media. And it's those controversial associations that should give members of the Senate and the American public serious pause.

    Call it Kavanaugh's cabal: There was his colleague on the Starr investigation, Alex Azar, now the Secretary of Health and Human Services. Mark Paoletta is now chief counsel to Vice President Mike Pence; House anti-Clinton gumshoe Barbara Comstock is now a Republican member of Congress. Future Fox News personalities Laura Ingraham and Tucker Carlson were there with Ann Coulter, now a best-selling author, and internet provocateur Matt Drudge.

     I have learned he was born and bred to be a partisan hack, but his fellow hatchlings are impressive vipers in their own right.

    Senator Sheldon Whitehouse (D. RI), (5.00 / 2) (#24)
    by KeysDan on Wed Sep 12, 2018 at 02:15:55 PM EST
    a former US Attorney and Rhode Island Attorney General, wants to know if Judge Kavanaugh has a gambling problem.

     In questions, to be returned in writing, Senator Whitehouse asks if the judge has ever sought treatment for gambling addiction.  And, continues his questions along the lines of Kavanaugh's personal finances, including his reported credit card debt and loans of between $60,000 and $200,000.

     The White House has claimed that the debt was incurred as a result of Kavanaugh buying baseball tickets for friends that were later reimbursed.  The credit card loan was paid of in 2016.  Questions were also asked about Kavanaugh's ability to purchase his house ($1.2 million), afford membership in a golf club whose initiation fee is $92,000 with an annual assessment of $9,000.

    Too bad, there was not time for these questions to be asked during the hearings; although Kavanaugh would no doubt artfully bob and weave,the body language would be interesting.  

    On Tuesday evening, Shah publicly denied that Kavanaugh received treatment for a gambling addiction, after reports came out on Whitehouse's questionnaire. Shah told the New York Daily News the answer was "a categorical no."

    "Sheldon Whitehouse's accusation was so incendiary and so baseless that we felt the need to respond," Shah told the Washington Examiner. "The White House believes it's a cheap shot and the answer is no."

    Well then, (none / 0) (#26)
    by KeysDan on Wed Sep 12, 2018 at 04:41:24 PM EST
    that settles it.  Although, we do need to watch the wording: "...Shah denied that Kavanaugh received treatment....".  Senator Whitehouse asked if the judge had ever "sought" treatment. A distinction that might be important to Raj Shah, more than Sarah Sanders.

    Miss Sanders, it would seem, would be the more likely communication aide to make this important denial announcement, since Trump does not place Raj high in the pecking order, as indicated in a matter related to the Woodward book, when Trump said "I don't speak to Raj."  Of course, it will be much more valuable to hear from Judge Kavanaugh in his written, under oath, response to Senator Whitehouse.


    Washington (CNN)Brett Kavanaugh (none / 0) (#27)
    by sarcastic unnamed one on Thu Sep 13, 2018 at 11:01:53 AM EST
    Washington (CNN)Brett Kavanaugh, the Supreme Court nominee who has drawn scrutiny from Democrats for the thousands of dollars of credit card debt incurred by purchasing baseball tickets, says he was paid by friends for the cost of the tickets "to the dollar."

    "Everyone in the group paid me for their tickets based on the cost of the tickets, to the dollar," Kavanaugh told senators in written questions for the record submitted Wednesday night. "No one overpaid or underpaid me for tickets. No loans were given in either direction."


    He also responded to questions about potential gambling debts, saying he had none, as well as his membership to a country club.


    Beyond his baseball fandom, Kavanaugh noted in response to questions that has "not had gambling debts or participated in 'fantasy' leagues."

    Kavanaugh has spent almost his entire professional career in government service, noted that his "annual income and financial worth substantially increased in the last few years as a result of a significant annual salary increase for federal judges; a substantial back pay award in the wake of class litigation over pay for the Federal Judiciary."

    Not (none / 0) (#1)
    by FlJoe on Fri Sep 07, 2018 at 05:58:20 PM EST
    that it matters, but the Democrats have pretty strong evidence that, Kavenaugh repeately committed perjury   .
    Supreme Court nominee Brett Kavanaugh has made declarations under oath during his current and past confirmation hearings that are contradicted by documents from his time as a counsel to the president and staff secretary in the George W. Bush White House. Newly released documents have undermined Kavanaugh's declarations to the Senate Judiciary Committee, contradictions that are drawing close scrutiny from many Democrats. Kavanaugh has denied making any misleading or false statements.

    Leahy is Pissed

    BREAKING: Kavanaugh testified he never received any docs that even "appeared to ... have been drafted or prepared by Democratic staff."  Well, he got 8 pages of material taken VERBATIM from my files, obviously written by Dem staff, LABELED "not [for] distribution".

    I kind of sort of (none / 0) (#2)
    by CaptHowdy on Fri Sep 07, 2018 at 06:11:51 PM EST
    Agree a little about Kavanaugh.  Maybe.

    I get the impression from what I read and from what people from very different BGs and politics say about him.

    I heard one liberal court watcher say he is probably as good as any nominee we would get from Trump or any of the 16-17 others who ran against him.

    But I still want democrats to burn him down.  Because Merrick Garland.  We survive on water from  a poisoned well and the right poisoned it.  I hate that but we can't allow them to get away with denying a fully legitimate president a constitutional appointment to the court to give multiple ones to an insane autocrat and just because they can.

    So, you republicans think it's sad and bad that mean ole democrats are poking such a nice man who COACHES (and tutors) GIRLS with sharp sticks....


    Boo fu@king hoo.  Welcome to the world you created.

    A Dem group has sued Kavanagh (5.00 / 3) (#8)
    by Towanda on Sat Sep 08, 2018 at 07:27:22 PM EST
    for perjury -- and the judge hearing the case?

    Merrick Garland.

    The Fates are just having fun with us.


    I don't understand, from a legal POV (5.00 / 1) (#10)
    by Peter G on Sun Sep 09, 2018 at 03:24:25 PM EST
    what "sued for perjury" even means. Perjury is a crime, for which one might be indicted by a federal prosecutor, but not a civil wrong (tort) for which you can be "sued," that I know of. And no new federal suit that I can imagine would be assigned in the first instance to Merrick Garland, since he is the chief judge of an appeals court. Can you explicate and/or provide a link? I smell fake news.

    That's (none / 0) (#3)
    by FlJoe on Fri Sep 07, 2018 at 06:36:42 PM EST
    why it's relatively pointless to ask about his stances on most issues, it's just going to be boiler plate Federalist Society dogma anyway even if you get a straight answer from him, Knock him down you will just get a clone.

    I think the question on the the limits of executive is extremely important, perhaps even existential at this moment of time.


    I'm with you (none / 0) (#4)
    by Ga6thDem on Fri Sep 07, 2018 at 08:54:40 PM EST
    on this. The only positive I can see about getting Kavanaugh on the court is GOP gubernatorial candidates can no longer hide. They are going to have to start answering questions on issues like Roe v. Wade that they have not had to answer previously.

    There won't be a Roe v. Wade... (none / 0) (#5)
    by unitron on Sat Sep 08, 2018 at 01:27:06 AM EST
    ...for anyone to worry about if he gets to be the new 5 in all the new 5-4 decisions that'll come down.

    Probably won't take long before there are a lot of rights to no longer worry about.


    The rights for which women have fought ... (5.00 / 3) (#7)
    by desertswine on Sat Sep 08, 2018 at 06:11:59 PM EST
    for 150 years since the nineteenth century will begin to slowly swirl  down the radical right-wing drain.

    Probably LGBTQ also (5.00 / 2) (#9)
    by Militarytracy on Sun Sep 09, 2018 at 11:21:26 AM EST
    I do not mean to minimize (none / 0) (#12)
    by smott on Mon Sep 10, 2018 at 11:15:07 AM EST
    Roe, or LGBQT rights....but at the moment I'm far more worried that Kavanaugh will vote to place Trump above the law in re executive power, ignoring subpoenas, and of course self-pardon.
    He's the vote to make the presidency imperial. We're teetering.

    Agreed (5.00 / 2) (#20)
    by KeysDan on Mon Sep 10, 2018 at 03:05:17 PM EST
    Kavanagh's rather recently found expansive view of presidential power is an existential threat to the democracy and its institutions.  However,, I am not sure that five votes on all these issues, can be secured even with the Court's right wing majority.

     Indictment of a sitting president is not likely, in any case, based on the DOJ position.  Mueller is, also, not likely to press on a presidential subpoena, which risks a Supreme Court loss and ablow to the investigation, generally.

    And, it may be too late for Trump for an effective firing of Rosenstein or Mueller. Especially, if Democrats take, at least, the House. The self-pardon, may get five votes, but for Trump to test it, would be politically fatal...not a feel-good situation, but it would meet the real goal...get him out of there.

    Kavanaugh, needs to be looked at as an evil mosaic, continuing Trumpism, long after Trump has gone  back to his golden apartment in Trump Tower, if it is still in his hands. Kavanaugh is a threat to Roe, gay rights, and issues yet to be uncovered that help Americans... for the next 30 or so years.


    We are (none / 0) (#13)
    by CaptHowdy on Mon Sep 10, 2018 at 11:27:46 AM EST
    I think you mentioned perjury

    Could the democrats be laying the groundwork to remove him?

    They say all documents will be available from the archive in a year or so.

    Are they smart enough to have a long term plan?



    The Supreme Court's LGBTQ jurisprudence (none / 0) (#15)
    by Peter G on Mon Sep 10, 2018 at 11:30:07 AM EST
    is Justice Kennedy's legacy. Kavanaugh clerked for Kennedy. I really don't think that line of precedent is in jeopardy, and particularly not from him. Roe v Wade per se, is a different (and complicated) story, in my view, which I will not elaborate here and now.

    Of couse, I (5.00 / 2) (#19)
    by KeysDan on Mon Sep 10, 2018 at 02:47:25 PM EST
    hope you are right (and that I am wrong), but my degree of confidence is not as high. In Obergefell v Hodges (2015), Justice Kennedy, writing for the majority, recognized a constitutional right to same sex marriage, but in his discussion he called for "an open and searching debate" between those who oppose same sex marriage on religious grounds and those who considered such unions proper or indeed essential."

     While Justice Kennedy was, apparently, trying to smooth ruffled feathers, it may be seen by the fevered opponents and exploiters (that compose a large measure of the "economic anxious")as an invitation to unsettle this three-year old decision.

    Justice Kennedy weakened his legacy in gay rights when he, in my view, quaked in Masterpiece Bakers v Colorado Civil Rights Commission.  The Court passed on an opportunity to bolster the right to same sex marriage. Instead, it took a narrow course leaving for another day to explain how far the government can go in regulating businesses run on religious principle, suggesting a future determination on the balance between religious belief and human dignity in seeking goods and services in the open market.

    Indeed, in Masterpiece Bakers, Justice Kennedy, once again, counseled that disputes must be resolved with tolerance to sincere religious beliefs and without subjecting gay persons to indignities.

    Kavanaugh's clerkship with Kennedy, and $2.75 will get you on an NYC subway, based on the integrity he has shown during confirmation hearings, now and during the three-years it took him to be confirmed to the DC Circuit Court.

    Kavanaugh will, I fear, be beholden to others who groomed him and took him to the prom.  As with Roe, Kavanaugh and his cohorts have plenty of ways to undermine Obergefell and gay rights, generally, taking Kennedy up on that religious belief "balance" using an Evangelical thumb on the scales.


    yes, it is true that equal rights for (none / 0) (#21)
    by Peter G on Mon Sep 10, 2018 at 11:12:31 PM EST
    gay people, according to Kennedy, are uniquely subject to infringement by others based on their religious opinions, or so it seems. Unfortunate and craven though that notion undoubtedly is, it is a far cry from the situation that existed, legally, before Romer v Evans, Lawrence v Texas, and Obergefell, all authored by Kennedy. Who is Catholic, by the way, like Kavanaugh, not evangelical.

    Indeed, Justice Kennedy (none / 0) (#22)
    by KeysDan on Tue Sep 11, 2018 at 12:10:53 AM EST
    is an icon for gay rights versus laws that restricted them---finding, that under the constitution, gay persons are entitled to equal protection under the law. The body of jurisprudence, including US v Windsor, indicate Justice Kennedy's legacy of commitment to the proposition that gay Americans deserve full equality.

    My concern is that Masterpiece Bakers missed an opportunity to strengthen and re-enforce  this legacy, taking the narrow path of the Colorado Civil Rights Commission being infected by religious animus, coupled with reassurances for dignity in seeking goods and services. A situation that can be seized upon to argue against Obergefell as settled law. For example, Kavanaugh, whose old Kennedy loyalties are likely to be maleable.

    If I did so, I regret misinforming that either Kennedy or Kavanaugh were evangelicals. I thought the religious affiliations of both were well known. It was a thumb that I intended to attribute to evangelicals, although such digit is surely not limited to same.


    Thanks for mentioning the Windsor (none / 0) (#23)
    by Peter G on Tue Sep 11, 2018 at 09:12:09 AM EST
    decision also, which struck down the federal "Defense of Marriage Act." I should have included that one as another important part of the Kennedy LBGTQ legacy.

    Strategic (none / 0) (#17)
    by CaptHowdy on Mon Sep 10, 2018 at 11:35:04 AM EST
    Clerking for Kennexy?

    One things we have learned is the Federalist Society has been grooming these candidates for decades.


    My impression (5.00 / 1) (#18)
    by CaptHowdy on Mon Sep 10, 2018 at 11:41:36 AM EST
    Of Kavanaugh was that of a product.  Carefully packaged and marketed.  

    Such a NICE man.  

    Fu@king seriously, he COACHES girls.

    Let's be clear

    He is a TROJAN fu@king GUIDED MISSILE.

    smott is right.

    We are teetering b!tches


    Not fake news, just nonsense (none / 0) (#16)
    by Peter G on Mon Sep 10, 2018 at 11:33:10 AM EST
    That a Dem-Left partisan group formally requested the DoJ in July to issue an arrest warrant for Kavanaugh for perjury committed at hearings years ago (as best I can tell what is actually involved) is a publicity stunt, not a legal development. Likewise their "request" that the matter be "investigated" by Judge Merrick. Total nonsense, albeit real.

    the comment you are replying to (none / 0) (#28)
    by Jeralyn on Thu Sep 20, 2018 at 07:01:26 PM EST
    was deleted