Brett Kavanagh

Brett Kavanagh: The sky is falling! It’s the end of the world!

Yup, if you read moderate to left-leaning publications and blogs, you’ve probably heard that it’s the end of times for the US Supreme Court. Oh, the other hand, conservative-leaning sources warn of and are already complaining about Democratic lawmakers pulling out all kinds of tricks… really? Because McConnell and the Republican-led Senate treated Merrick Garland and Barrack Obama fairly?

Please… I’m not sure how many so-called “tricks” there are anyway. This confirmation has always, since the moment Anthony Kennedy announced his retirement, been about John McCain, Susan Collins, Lisa Murkowski, and Joe Manchin, Heidi Heitkamp, and Joe Donnelly… it has never been about fair play or judicial qualifications. If it were, we wouldn’t even be having this conversation. Brett Kavanagh is a qualified as any member of the Supreme Court has been.

Kavanagh graduated from Yale Law School, served three clerkships, and been a Federal judge for 12 years. And those clerkships? One of them was with the very same Justice Anthony Kennedy that Democrats are bemoaning for retiring.

In fact, on June 1, 2006, Kavanagh was sworn in as a member of the DC Circuit Court of Appeals by Justice Anthony Kennedy. It seems to me that Kavanagh has the blessing of the very man celebrated for his decisions in gay rights cases and other 5-4 decisions.

Kennedy

But, at the same time, I think it’s also important to put Anthony Kennedy into historical perspective as we evaluate his potential successor. Yes, Kennedy voted with the majority in two cases quite dear to Democrats: Boumediene v. Bush and Obergefell v. Hodges. I dare say that Kennedy voted to maintain abortion rights in Planned Parenthood v. Casey too, though with increased limits. But Kennedy is no darling of causes liberal after all: Kennedy voted with the conservative on the Court in Boy Scouts of America v. Dale, District of Columbia v. Heller, and Kansas v. Marsh.

Judge Kavanagh

In terms of Kavanagh’s own judicial decisions, supporters and critics alike point to Garza v Hargan and have declared – Kavanagh’s going to ban abortion! Personally, however, I know that I would not have wanted to make that decision; it’s not the open and shut case that many seem to think.

Breaking new: Kavanagh has been pro-business, critical of environmental regulation, and a supporter of Christian religious rights… wow… its almost like he’s a conservative appointee? And yet, judges are not susceptible to demands of lobbyists and the whims of voters; twice Kavanagh sided with the government in cases involving the Affordable Care Act. In another case, he errored on religious latitude in Priests for Life v. U.S. Department of Health and Human Services.

Religion

Which brings us to Kavanagh’s religious affiliation and its role in judicial decision-making. Yes, it is worth discussing Kavanagh’s religion to a limited degree. Kavanagh is Roman Catholic and, as such, will maintain the Catholic majority of the US Supreme Court. Having said that, however, what does that even mean? The Catholic majority has not voted en bloc: the conservative Catholics have voted to support the death penalty, and the liberal Catholics have supported abortion-rights, so it seems to me that Kavanagh’s political ideology is more influential than his religion. If you do want to discuss his Catholicity more, it is worth noting that he is a volunteer tutor at Washington Jesuit Academy; the fact that Kavanagh volunteers his time, and with Jesuits, speaks more to me that his Mass attendance.

Mitch McConnell, Merrick Garland, Justin Kennedy, and Donald Trump

Politically, there is a lot that sticks about recent nominations to the US Supreme Court. From the refusal to call for a vote on Merrick Garland, to the elimination of the filibuster rule to favor Neil Gorsuch, McConnell personifies the hypocrisy and ‘Swamp’ of Washington, DC. But that’s not Kavanagh’s fault; he played the game and worked his way up to be in consideration for a nomination, just as liberal lawyers and judges have done as well.

Should we mention the end of the apolitical court and Bush v. Gore? Kennedy voted with the supposed States’ Rights conservatives to assert Federal authority over the Florida ballot counting at the same time that the pro-Federal Democrats on the Court voted to support States’ Rights. The veil of judicial independence had finally been lifted.

Even worse, the recent revelations about family connections between Anthony Kennedy and Donald Trump are disappointing, nauseating, and potentially unethical. But that has nothing to do with Brett Kavanagh.

I think we owe it to Brett Kavanagh, and more importantly to ourselves, to judge Kavanagh with the Golden Rule, not by McConnell’s Rules.

Which brings me to my second to last points: the art of predicting SCOTUS voting.

Nominations to the US Supreme Court

When I think about the history of Supreme Court nominations, I think of Harriet Myers; I think we can all agree Kavanagh is more qualified and his nomination (Kennedy-Trump connections aside) less nepotistic than a president nominating a member of his staff.

If you want qualified, has there ever been a more qualified nominee than Judge Robert Bork? Yet being qualified wasn’t the issue, it was his well-documented history of judicial decisions. As a result, presidents of both parties have nominated younger, less documented judges ever since; so, it would be hypocritical to criticize Kavanagh for his judicially-speaking nascent age of 53.

But most of all, when I think about nominations to the US Supreme Court, I think of Earl Warren. Nominated by Republican US President Dwight D. Eisenhower, Warren, when lifted from the confinement of political accountability, Warren became the most liberal Chief Justice in history. I also think of Sandra Day O’Connor and how disappointed Reagan and the conservatives were with her voting record… but more recently, I think of the make-up nomination to Judge Bork, Douglas Ginsburg. Can you believe we almost had a member of the Supreme Court who smoked marijuana?!!?! Thank goodness, Ginsburg withdrew his nomination… after all, could you imagine two Ginsburgs on the same Court? So, President Ronald Reagan settled on a Circuit Judge with exactly 12 years of experience to be his reliable conservative. That Associate Justice, of course, was Anthony Kennedy.

Chief Justice John Roberts

Finally, there is the nature of the Court and the leadership style of Chief Justice John Roberts. Supreme Court Justices do not make isolated decisions in a vacuum. The Nine meet privately and reflect upon each case, circulating draft decisions for discussion. Roberts, in particular even among other Chief Justices, is acutely aware of the partisan poison in American and has worked hard to build 7+, 8+, and even unanimous decisions. Look no further than Masterpiece Cake v CCRC. In the room of consensus, Kavanagh is just one voice. Yes, he is a conservative voice, but the deliberative and congenial nature of the Court lends itself to being caretakers of the Constitution, not Lone Ranger Constitutional cowboys.

Conclusion

Brett Kavanagh has said the right things. In 2006, Kavanagh told the US Senate, “I firmly disagree with the notion that there are Republican judges and [Democratic] judges,” he said. “There is one kind of judge. There is an independent judge under our Constitution.”

Like Roberts, Kavanaugh seems to give broad consideration to executive authority and unitary executive theory; yet Kavanagh has also worked for the Independent Council’s Office and wrote sections of the Starr Report that criticized President Bill Clinton and, ultimately, was used as an instrument to impeach Clinton.

So, who is the real Brett Kavanagh? I think we’ll have to wait until he’s actually been confirmed and begins to make his mark. Ultimately, we won’t really know until he’s been on the court for 30 years like his old boss, Anthony Kennedy.

Religion v Speech ~ June 4th

Freedom of Religion versus Freedom of Speech

The tyranny of the Majority versus The Tyranny of the Minority

On this day, June 4, 1738, George III (June 4, 1738 – January 29, 1820) was born in Norfolk House, St. James’s Square, London, England, Kingdom of Great Britain.

In 1791, George begrudgingly assented to the Roman Catholic Relief Act. The Act relieved Roman Catholics of certain political, educational, and economic disabilities. It admitted Catholics to the practice of law, permitted the legal practice of Catholicism, and the existence of Catholic schools. (On the other hand, there were continued restrictions as well: chapels, schools, officiating priests, and school teachers had to be registered with the government. Assemblies with locked doors, as well as steeples and bells to chapels, were forbidden. Catholic priests could not wear clerical robes or offer Mass in the open air; Protestant children could not be admitted to Catholic schools. Monastic orders and endowments for Catholic schools and colleges were prohibited.)

The Tory Leader, William Pitt the Younger, as well as the rival Whig Leader, Charles James Fox, had pledged full Catholic Emancipation. Amazingly, however, King George III argued that full freedom for Catholics would be a violation of his coronation oath.

It wasn’t until 1766 that true Catholic Emancipation did not occur until the Roman Catholic Relief Act 1829. To overcome the vehement opposition of both the House of Lords and King George IV, the Duke of Wellington worked tirelessly to ensure passage in the House of Lords and threatened to resign as Prime Minister if the King did not give Royal Assent.

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On June 4, 1870, Maria Elizabeth Hesselblad was born. Hesselblad worked tirelessly at inter-religious dialogue, and against racism. During World War II – and after – she performed many charitable works on behalf of the poor and those that suffered due to racial laws and promoted peace between Christians and non-Christians. The war also saw her save the lives of Jewish people who would have otherwise have perished in the Holocaust had it not been for her direct intervention. Pope John Paul II beatified her on April 9, 2000, and Pope Francis approved her canonization in late 2015. Hesselblad is also recognized as a Righteous Among the Nations due to her efforts in World War II saving the lives of Jewish people during the Holocaust.

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On this day, June 4, 1989, the Tiananmen Square Massacre occurred in response to the pro-democracy demonstrations. At the heart of these demonstrations was the lack of freedom in China… no freedom of religion, no freedom of speech, and -certainly on June 4th– no freedom of assembly or petition of grievances.

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And today, June 4, 2018, the US Supreme Court announced its decision in Masterpiece Cake v CCRC. Personally, I’m glad I didn’t have to write that decision. I don’t think it’s as simple as either of the two sides think that it is. I think the decision was basically a loud statement of shut up go to your corners and act like adults

As my friend David Stacy said, its perhaps “one of the most intelligent decisions they’ve written in some time… What I think is so brilliant about it is that it’s allowing for a better conversation. SCOTUS set the standard for how government officials treat religious individuals and cases of religious expression outside of the clergy. The fallout will be interesting, for sure.”

I sure hope Dave is correct. but I am nervous about the fact that there were three different concurring opinions. That kind of tells me that they couldn’t agree among themselves, and that’s why they made a narrow decision, not for their altruistic and brilliant reasons that David is hoping for.

Where is that line between religion and speech?

  • Would we expect a Muslim cakemaker to put an image of the Prophet Mohammed on a cake? Would a Jewish cakemaker have to create a cake with a swastika on it? Would a Catholic cakemaker have to make a cake with the image of a pope or priest as a pedophile or with condoms?
  • On the other hand, would we be comfortable with a cakemaker denying to make a cake for a mixed-race wedding? Or a cake for a marriage between persons of obvious age discrepancy?

What right does a service provider have to limit their services? What right does society have to force services from unwilling service providers? I sure don’t know…

I also think, but I’m not sure how this would be worded in a judicial decision, that there is an issue of access. I’ve heard this issue come up in abortion/women’s reproduction cases. In Whole Woman’s Health v. Hellerstedt (2016), the Court held that if legislation is crafted in such a way that the access to abortion clinics is essentially eliminated, then that is unconstitutional. So, to a degree, as long as there are fair alternatives to Masterpiece Cake, then the Court perhaps should lean toward protecting the religious freedom of the business owner, however, if there was not a fair alternative, then the Court ought to lean toward protecting the rights of the customer.

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Regardless, and as I said to David Stacy earlier today is that, personally, I’m glad I didn’t have to write that decision. I also don’t think it’s as simple as it might seem prima facie. Personally, I think the decision was basically a loud statement of shut up go to your corners and act like adults…

U.S. Supreme Court Multiple Choice:

A) Bush has decided to make his nomination of Harriet Miers based on his personal relationship, than on any judicial reckoning. This is acceptable on face-value, but does hint at cronyism.

B) Although Miers has a nearly non-existent paper trail, Bush knows something that “we” don’t and is daring Democrats to vote against her in much the same way as his father dared Senate Democrats to vote against Clarence Thomas. This may seem plausible, but one wonders if Bush was “pulling a Thomas,” then why didn’t he nominate a Hispanic-American and thereby make a Presidential First instead of a Presidential Third?

C) Bush has “blinked” in a Constitutional showdown. Bush, realizing his evaporating political capital, has decided to offer a moderate nominee who will more easily sail through confirmation and, thereby avoid the filibuster threat. In the spring, Bush may have prevailed politically and personally, but with the myriad of recent events and while Bush could have prevailed in the Senate, he would have sacrificed any political capital for the remainder of his term. Unfortunately, in “blinking” to the Democrats, Bush has agitated his most loyal political base who will feel betrayed that the nominee is not a Renquist-Scalia-Thomas clone.

And the answer is? We should know in fifteen years or so…

The Democratic Spin: The Democrats should applaud Miers as much as possible, making her out to be their choice all along. This gives them increased stature and will surely exasperate the conservatives’ sense of betrayal.

The Republican Spin: The White House and Republican allies should offer Miers up as an example of fulfilling the campaign promises of bringing people together and changing the culture of Washington.

Catholic Conspiracy?

Ahh, the Church leaders are obviously involved in a DaVinci-Codish conspiracy of Constitutional proportions… Why else would they be silent on the Catholicity (or lack their of) of Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy? After the inevitable confirmation of John Roberts, there will be four Catholics on the U.S. Supreme Court. One more and they can of course, overturn Roe v. Wade. That could be the only reason for the American Catholic bishops to attack Catholic Democrats and give a free pass to Republican Catholics that are pro-death penalty, pro-torture, anti-civil, and anti-equal rights.

Thank God I’m Not a Republican

Thank God I’m Not a Republican. Boy, I’d really be upset if I was a conservative. After all, it’s been eleven years since the Republican Revolution and the Contract on America. The U.S. House of Representatives has been Republican ever since. The U.S. Senate has been controlled by Republicans for six of the last seven years. In the last seven presidential elections, only one Democrat (Bill Clinton) has won. [And remember pundits claimed that Clinton only won because Ross Perot split the vote three ways and Alan Greenspan “betrayed George HW Bush (President George H.W. Bush, “I appointed him and he disappointed me.”)]. Twenty-eight of the fifty governors are Republican (source: rga.org). Most of the state legislatures are controlled by Republicans (21 GOP, 17 Democratic, 11 split; source: ncsl.org).

And what have they done? The party platform claims that “We oppose abortion…we support the appointment of judges who respect traditional family values and the sanctity of innocent human life. (source: GOP platform, pg84). Meanwhile, George W. Bush has nominated John Roberts who has said in swore testimony before the U.S. Senate the Constitution supports privacy, the key legal concept used to decide and uphold Roe v. Wade. Roberts also unequivocally said “Roe v. Wade is the settled law of the land…There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent” (source: US Senate testimony).

The bottom line is this: if you want to be a Republican, that’s fine. But don’t delude yourself into thinking that the Republican Party will ever undo Roe v. Wade. They control entire US government from top to bottom and haven’t done a thing. Most importantly, even if you want to stay deluded yourself, stop using guilt, religion and scare tactics to make good people think they have to vote Republican.

Bad News for Outside Washington, Good news Inside Washington

Iraq, Oil Prices, Katrina. George Bush’s poll numbers are sinking as fast as oil prices are rising. We are witnessing devastation eerily similar to 9/11, the destruction zone of the Southeast tidal wave, and the parts of the world affected by war and famine. In all of this Chief Justice Renquist has died. Bush’s inability to accomplish any “mission” is good news for defenders of the Bill of Rights. Bush has lost so much political capital that the likelihood of his elevating Clarence Thomas, Antonin Scalia, or their like has diminished. These are tough times personally, humanly, economically, and internationally. Perhaps there is a chance though for a more balanced bench on the highest court inside Washington.

Political Campaign for USSC?

What’s in a Name?
by Holly Bailey (reprinted from Newsweek, July 13th, Periscope)

June 13 issue – Ted Jackson is ready. The Kentucky Republican operative who designed and sold President George W. Bush’s official campaign gear in 2004 is already sketching out the bumper stickers, hats and T shirts that will advertise Bush’s nominee for the Supreme Court—whoever that may be. Amid speculation that ailing Chief Justice William Rehnquist may soon retire, Jackson and his company, the Spaulding Group, are laying the groundwork for what will be an unprecedented public campaign in favor of a high-court nominee. Following the model of Bush’s online campaign store, Jackson plans to sell yard signs, buttons and other items once exclusive to political campaigns and use them to promote Bush’s candidate to replace Rehnquist as chief justice. The only difference, Jackson says: instead of vote for or elect, signs will say confirm.

Could a Scalia for chief justice sign pop up in a yard near you? Jackson says there’s already been “considerable demand” for court items from customers who stocked up on Bush memorabilia in 2004. (He plans to sell the goods on the same site: georgewbushstore.com.) “People are a lot more open with their politics than they used to be,” Jackson says. “In this case, they not only want to show their support for President Bush, but they also want to show their support for his agenda and his nominees.” While there is rampant speculation about potential candidates, Jackson says his group hasn’t drawn up any designs with certain individuals in mind—nor has he gotten any hints from his friends at the White House. Like everyone else, he’s waiting and wondering. “All we need is a name,” he says. “Once we have a name, we can turn around something within 48 hours.”