Balkinization  

Wednesday, July 18, 2018

A Question for Judge Kavanaugh

Gerard N. Magliocca

I have never met Judge Brett Kavanaugh. I know him only by reputation. And his reputation is stellar. He is a fine circuit judge and is obviously qualified to sit on the Supreme Court. Moreover, I have supported the confirmation of every Supreme Court nominee during my professional career except Harriet Miers, who was in my view manifestly unqualified for such a position.

Nevertheless, there is something that bothers me about Judge Kavanaugh. Hopefully someone will ask him about this subject during his confirmation hearings. In his speech thanking the President, Judge Kavanaugh said "No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination."

Now if I wrote that sentence in law review article, the first question I would have to answer is: "What is the basis for that statement?" In other words, why do I think this is true? In Kavanaugh's case, the answer is that he cannot possibly know that what he said is true. First, he was not privy to all of the President's conversations about the nomination. Second, he was not privy to the vast majority of the conversations about prior nominations. Third, I see no reason to think that the statement is true.

This leads to a rather unfortunate conclusion. Judge Kavanaugh's first statement to the American people as a Supreme Court nominee was either sloppy, false, or dictated to him by the White House. (It sounds a lot more like something that the President would say.) I don't think this is praiseworthy.

To be fair, Prime Minister Hacker once pointed out that "press statements aren't made under oath." I can certainly understand that hyperbole can happen after receiving the honor of a lifetime. But I think that the Judge might want to consult a little more widely before he makes the same claim under oath.  

Comments:

The text can be found here:

https://www.washingtonpost.com/national/text-of-president-donald-trump-brett-kavanaugh-remarks/2018/07/09/3650420e-83e8-11e8-9e06-4db52ac42e05_story.html?utm_term=.a17019981cd7

We can be honest about the whole process, including those who support his nomination. We need not rely on one sentence though it's pretty blatant and sound bites are a quick way to broadcast broader themes. Anyway, how about this, which actually came before the line quoted:

"Throughout this process, I have witnessed firsthand your appreciation for the vital role of the American judiciary."

Democrats can have fun with that one. Anyway, there's this that is more run of the mill pablum:

My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.

Yes. As compared to non-independent judges who don't interpret the law, interpret statutes etc. at they are not written [such simplistic summary of textualism is akin to sugar flavored breakfast cereal on the nutrition scale] and are not informed by history etc. (Breyer is too.)

 

The fact that he made a blatantly false statement in his public introduction hardly bodes well. Still, I think the present circumstances make his views on Morrison v Olsen much more potentially significant.
 

Gerard's post does not reference the story that made the rounds of a "Fix" between Trump and Justice Kennedy's timing to retire. Has Trump declared this is "Fake News"? Has Justice Kennedy said anything about it? Has the White House? If the "Fix" was in, then Judge Kavanaugh's statement is indeed a blatantly false statement.

But let's revisit Monday's joint presser at Helsinki for the dramatic moment when Putin gave Trump a soccer ball from the World Cup with Russian words translated in English: "Now the ball is in your court." I can't vouch for the translation, but Putin on the Fritz was using a not so subtle metaphor in recognition of Trump's selection of Judge Kavanaugh whose 2009 Minnesota Law Review article would protect Trump's presidency. So maybe this was Putin's way of saying "You're welcome," assuming Putin was one of those with whom Trump widely consulted on this nomination.
 

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Gerard: Judge Kavanaugh said "No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination." Now if I wrote that sentence in law review article, the first question I would have to answer is: "What is the basis for that statement?" In other words, why do I think this is true?

Would you really waste your five minutes (or whatever a Senator is allotted) asking this question?

All Judge Kavanaugh needs to do is smile for the cameras, thank you for your question, then admit in an aw shucks way he did not conduct a scientific study, but was impressed with the way candidate Trump developed a list of two dozen very qualified jurists from which he has nominated Supreme Court justices, thus patting the POTUS and himself of the back as he swats away the question. He should also note the rapid pace in which Trump has nominated very qualified lower court judges.

"The fact that he made a blatantly false statement in his public introduction hardly bodes well."

In what way is this statement "blatantly false?" Trump and his agents must have put in a great deal of time vetting these judges. The Donald has many, many faults, but his judicial nominees are superb, an all star team of constitutionalist jurists.

Which previous POTUS put in more work, or more to the point, worked more effectively than Trump? Certainly not the last occupant of the White House, who (thank heaven) dithered for months making nominations (and making almost any other consequential decision).
 

Which previous POTUS put in more work

More work at the golf course. Excuse me, at his own golf course.

How about: which POTUS ever had a bigger inauguration crowd! Which POTUS could shoot them on Fifth Avenue and grab them by the pussy! Which had more WH staff turnover! Had his National Security Advisor plead guilty to a Federal felony charge less than a year after his chief's inauguration!

Which POTUS was more confused about grammar when standing on the stage with the head of a nuclear-armed "foe" and wished that his people would sit up and applaud for him or make him president for life like the other dictators!

So much for the would-be defender of Article 12 of the US Constitution, along with his citation of Two Corinthians...
 

Check out this NYTimes URL:

https://www.nytimes.com/2018/07/16/world/europe/putin-trump-soccer-ball.html

"What a Soccer Ball Said About Putin’s Meeting With Trump in Helsinki" by Katie Rogers

 

He made a general, confident, self-serving assertion when he not only didn't know all the possibly relevant evidence but *couldn't* know it. No wonder Bart and conservatives like him! What's an obvious intellectual flaw to most is kind of a worldview for movement conservatives.
 

A statement does not have to be under oath in order to be a lie.
 

I do not think that it is right to support a nominee merely because he or she is "obviously qualified," where that term presumably refers to his or her intellectual achievements and integrity. Supreme Court justices are obviously political creatures, and, if you care about democracy (if you oppose Citizens United, gerrymandering, and voter suppression), and if you care about women having the right to control their own bodies, to name just two issues, then you should oppose any nominee, no matter how "obviously qualified" he or she is, who does not care about these things.
 

I have an idea about how SCOTUS appointments could be less politicized that I'd like to throw out here and see what people think of it. When there's a SCOTUS vacancy the names of the chief judges of the various circuit court of appeals are put into a hat and one is drawn, that person becomes the nominee (or judge). Thoughts?
 

Henry, Mitch McConnell obviously agrees with you!
 

So one side should be political and the other should be "above" politics?
 

Good point, as Bill Clinton once said about campaign finance reform, unilateral disarmament in a fight over principles/policy is never a good idea!
 

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I reckon the Chief Judges is a limited sample size and one or more might not be readily available or objectively a very good choice. I think we should have more nominees who aren't federal court of appeals judges at any rate.

At the very least, not going to the same few schools with the same basic records. We would at least expand the range of federal judges picked out of a hat. Now, we are so insular, that two actually went to same high school (I believe they very well might have had at least for a short time overlapping terms there). Assuming Kavanaugh is confirmed, of course.
 

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Now if I wrote that sentence in law review article, the first question I would have to answer is: "What is the basis for that statement?"

Kavanaugh can cite to Pew Research, which just released the relevant data:

Donald Trump has successfully appointed more federal appeals court judges so far in his presidency than Barack Obama and George W. Bush combined had appointed at the same point in theirs, according to a Pew Research Center analysis of data from the Federal Judicial Center.
 

"Kavanaugh can cite to Pew Research, which just released the relevant data"

What you cite doesn't in any way address what Gerald argues.

Kavanaugh stated that "No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination."

As Gerald pointed out, Kavanaugh has no idea who Trump consulted on his nomination and *cannot know* who other Presidents did on other nominations.

For you to try to 'counter' the argument with a cite about how successful Trump has been in appointing judges is incredible. It really tries to address Gerald's logical arguments with a 'brute force' look how successful! Classic fascism!


 

To paraphrase the great conservative Chesterton: a rhino runs amok in a china store; the rhino's owner argues the beast had considered it's actions in a way like no other; a critic notes there's no way the owner could know what other beasts in history have considered and acted; the rhino's owner argues the success of the rhino in destroying the china shop demonstrates his point.
 

MW, chief judges are now designated solely on the basis of seniority (and under 70). That's not a particularly good mechanism for good SCOTUS Justices, and they'd be much older than the average appointee today (for better or worse). Worse yet, I strongly suspect that a partisan Congress would change the rule to favor judges appointed by a President of their own party.

I still think the best solution is 18 year term limits for a Court of 9 Justices. That means each president gets 2 per term. The necessary amendment would probably have to require automatic appointment, with perhaps a veto if 60 Senators agree and such a vote required within X days, in order to avoid partisan games in the Senate.
 

Or 11 justices, perhaps.
 

Yes, and the increase can come via statute rather than amendment. That would require 22 year term limits to reach the same result.
 

Mark is right about 18 year term limits.
 

هل تبحث عن شركة متخصصة فى خدمات التنظيف بالطائف بافضل المعدات والسوائل وثقة تمة فى العمل ودقة فى النتائج كل هذه المميزت توفرها شركة الخليج الشركة الافضل والامثل فى الخدمات المنزلية بالطائف وبما اننا الشركة الافضل والامثل بدون منافس سوف نسعى لتوفر افضل الخدمات باقل تكلفة وبقدر كبير من الاهتمام والدقة عزيزى اينما كنت فى اى منطقة ا وحى تابع لمدينة الطائف اتصل بنا وسوف نصلك فى الحال شركة الخليج للخدمات المنزلية شركة تنظيف منازل بالطائف
شركة تنظيف فلل بالطائف
شركة تنظيف خزانات بالطائف
شركة تسليك مجارى بالطائف
شركة رش مبيدات بالطائف
شركة مكافحة نمل ابيض بالطائف
شركة مكافحة حشرات بالطائف
شركة عزل اسطح بالطائف
شركة عزل خزانات بالطائف

 

I might quibble about the term limit, as two per term means a two term President would pretty much always end up with a controlling majority on the Court by the end of his second term.

In my opinion the increasing partisanship of Supreme Court jurisprudence is almost an epiphenomenon compared to Supreme court bias in favor of the federal government, and the expansion of its power relative to the states and the people. I'd rather take control of the composition of the Supreme court away from the federal government, and hand it over to the states. Maybe replace the Senate's role in confirmation with a body made up of all the states' governors.

The Senate was originally intended to be the state governments' leverage over the federal government. We lost that early on, and completely spiked it with the 17th amendment. The last 80 years or so has shown what a mistake that was.
 

Handing the power to the states would perpetuate the problem we have with the Senate. Wyoming, with 1/67th the population of California, would have equal power, unless we gave California's governor 67 votes and Wyoming's governor 1 vote.
 

The Supreme Court had a "bias in favor of the federal government" in the days of John Marshall. There surely was a shift there in the 1930s, but the partisanship took over fifty years to blatantly arise. The partisanship is the result of modern day political choices where judges are more carefully picked to be consistent to a specific party.

The Senate was never set up to merely serve as the agent of the states at large akin to the Articles of Confederation where each state had a single vote and had more independence. Each senator did not have to get instructions for the state. Senators were representatives of states as a whole. Originally, representatives of the people picked them. Then, people of states as a whole directly elected them. Even before the 17A, states were starting to give the people direct means to elect. People in Lincoln and Douglas' day voted for legislators pledged to a particular person.

Giving people the right to vote for senators was not a mistake and the move toward a stronger federal government was already ongoing with or without the 17A. And, the will of the people was to be able to elect senators, if only by states de facto doing that and legislatures being rubber stamps. Those against the 17A in effect want to force states not to do that.

Good luck with that. Democracy is not supported here. That's when the courts restrain Trump or apply the Constitution is a way deemed wrong.
 

"Handing the power to the states would perpetuate the problem we have with the Senate."

You say bug, I say feature. The purpose of the Senate was to keep the new federal government from being run by a few large states in their own interests, and running roughshod over the interests of the smaller states. A very common goal in the design of federations, since smaller states typically refuse to join federations in the first place without such guarantees.

The conflict between state and federal politicians, each seeking their own interests, was supposed to restrain the federal government, by way of the Senate. But once the Senate was popularly elected, its members became federal politicians, with an interest in enhancing the power of the federal government.

Naturally, with Presidents and the Senate united in that motive, judges who'd enforce constitutional limits on federal power had little prospect of ending up on the Supreme court.

As far as legislative duties are concerned, I have no great quarrel with the Senate being popularly elected. And you can't just create a new body selected by state level politicians, it would undergo the same transition as the Senate itself did.

Thus my proposal to transfer Supreme court confirmations to a body that is made up of state level politicians, not merely selected by them. It seems to me the best way to restore that clash of interests that was intended to restrain federal growth.
 

"The purpose of the Senate"

I like the way you identify a single purpose so confidently, as though (a) there was just one; and (b) that particular purpose was not highly contested even at the time.
 

"The conflict between state and federal politicians, each seeking their own interests, was supposed to restrain the federal government, by way of the Senate."

While the argument was made that state and federal politicians would have competing interests, each checking the other, that was a 2-way street. And I don't recall offhand anybody making that argument limited to the Senate (or, for that matter, even about the Senate). The big problem is that the Senate never did actually represent "states" per se -- it represented *small* states.
 

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The irony of Bart arguing that Trump has been more successful than Obama in appointing appeals court judges, when the reason he had so many vacancies to fill is that the Republican Senate refused to so much as consider any Obama appeals court nominees in the last several years of his presidency. The doctor who sews up your stitches doesn't get credit for doing so if he were the one that had stabbed you in the first place.

 

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"Thus my proposal to transfer Supreme court confirmations to a body that is made up of state level politicians, not merely selected by them. It seems to me the best way to restore that clash of interests that was intended to restrain federal growth."

The Constitution was established to expand federal power though there were various checks in place to balance various interests. There are particularly national interests involved (including national rights) which is why national bodies were set up to carry them out. Later amendments to the Constitution [taking the BOR as mostly contemporaneous with the original] if anything only increased the understanding of national interests over and above states. See, e.g., the 14A.
 

Brett writes at 12:17: "The purpose of the Senate was to keep the new federal government from being run by a few large states in their own interests, and running roughshod over the interests of the smaller states."

Agreed, but that was 230 years ago, and it does not constitute an argument for retaining the Senate as it is today. I believe that, at the time of the framing, the most populous state had six times the population of the least populous state, not 67 times, as it does today. Today, the small states run roughshod over the interests of the large ones.
 

VA had 13 times the population of DE in 1790. That doesn't change your basic point, of course.
 

James Madison and others also saw it as much about protecting slaves states as "small" states generally. In practice, this eventually was how things split up, not "small" vs. "big" states.

Anyway, like Mark Field said, I'm not going to grant the premise is "the" reason why there is a "Senate" (as compared to there being a two senator rule vs. Madison's preferred per capita approach particularly for that reason).

Plus, in practice, "a few large states" would not likely have been the result as if "large states" had some united interest & VA and MA was going to go against NH and SC or something. Finally, ultimately, there were various means for states to have their power protected, the Senate merely one means. And, again, it was left open for legislatures ala the Electoral College to merely be rubber stamps. Even by the 1850s, democratic moves were in place as seen by pledged legislators akin to pledged electors.
 

"James Madison and others also saw it as much about protecting slaves states as "small" states generally."

Yeah, the last decade or so has seen a lot of revisionist history in that vein. A big push is on to delegitimize the Constitution by claiming that basically the whole thing is about protecting slavery. Some people seem to think that with a bit of work, they can convince the American people that they're better off without the Constitution.

So far it hasn't been working well, the Constitution is still substantially more popular than the government.

"The irony of Bart arguing that Trump has been more successful than Obama in appointing appeals court judges, when the reason he had so many vacancies to fill is that the Republican Senate refused to so much as consider any Obama appeals court nominees in the last several years of his presidency."

Trump is looking good compared to Obama at this point in his administration, in part because Reid killed the filibuster for lower court nominations, and in part because Obama got a really, really slow start on making nominations. The rate at which they were confirmed after being nominated was perfectly reasonable, he just didn't hit the ground running.
 

"Yeah, the last decade or so has seen a lot of revisionist history in that vein."

Yes, and a lot of revisionist history is necessary, because, as a result of the failure of Reconstruction and the success of the Lost Cause myth, this country denied the horrors of slavery for a century. The civil rights movement of the 1960s prompted revisionism, but the extent to which the Constitution was about protecting slavery is still not appreciated widely enough. Note that I said "the extent to which"; your "the whole thing is about" is a strawman. And what does "better off without the Constitution" mean? Do you mean that some people want to have no constitution? If so, please name some. Or do you mean that some people want to amend the Constitution to make it more democratic? Finally, the popularity of the Constitution is not a measure of how well it is working, especially because most of the people among whom it is popular probably don't have an inkling of what it says.
 

I think this covers the topic well.

The revisionism I'm seeing is in things like declaring that the 3/5ths "compromise" wasn't a compromise, it was just a total win for the slave states. Or that federalism was just about protecting slavery. I'm getting the distinct impression that there's no nuance at all in how this is being taught today, it's just "Founders evil. Ugh!"

Clearly the Constitution made compromises on the topic of slavery. It was not a total win for the slave states, it was not a total win for the abolitionists. It's easy to look back at the people who made those compromises, and claim that they shouldn't have compromised. Slavery IS evil. Even the slave owning founder knew it. Jefferson: " Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever..."

At the time, it was thought slavery was on the way out, and the belief was that, if they kicked the can down the road, later they'd be better positioned to just end it. The cotton gin ended that hope. We could wish they'd settled it earlier, but they feared that without unity they'd be picked off by the European powers, and I think they're right about that.
 

Wait a minute. Your argument that the Constitution was *not* "about protecting slavery" involves citing the 3/5 clause?
 

"A big push is on to delegitimize the Constitution by claiming that basically the whole thing is about protecting slavery."

That's not actually what I said.


 

Yes, Mark, my argument that the Constitution was NOT about protecting slavery does indeed involve a clause which reduced the representation of slave states.

Without the 3/5th compromise, slaves would have counted for apportionment just as children and women and every other group who couldn't vote did. At 100%. The 3/5ths compromise reduced the power of slave states.

0/5ths would have reduced it more. 5/5ths, which is to say, no clause at all, would have been preferred by the slave states.

That's why it's the 3/5ths "compromise".
 

The Constitution was not "about protecting slavery" in the sense that (per a past debate with Dilan) that is its primary purpose. This though was a misreading of my comment.

My comment was how the Senate in practice was more [at the very least "as much"] about free v. slave than small v. large state and history shows this. Madison's writings on the subject can also be cited. Mark Field can probably supply quotations though not sure what good that does in convincing the resident originalists given past experience.

To that degree, the 3/5 Compromise did help slave states. Compromises help both sides. The Constitution has various aspects that slave states understood to as a whole protect their interests, the document overall a compromise as such things tend to be especially given the supermajority necessary for approval.

Mark Field in past thread also cited something that broke down how states apportioned things at that time and simply apportioning per capita was not yet the rule. The Constitution if anything was ahead of the curve there as to the House. A major way used involved counting electors. In that respect, 3/5 would be a net plus, since slaves weren't even considered (unlike free women and children) by many members of the political community at all.
 

"Without the 3/5th compromise, slaves would have counted for apportionment just as children and women and every other group who couldn't vote did. At 100%."

This is wrong both theoretically and historically. As a matter of history, you've identified only the slaveholder position. The argument *against* the 3/5 clause -- which is what we need to consider because the clause was a "compromise" -- was that slaves should not count at all for purposes of representation. Two quick examples:

Roger Sherman kicked off the whole debate on June 11 with this: "Mr. SHARMAN proposed that the proportion of suffrage in the 1st. branch should be according to the respective numbers of free inhabitants"

Later the same day, Elbridge Gerry said "Mr. GERRY thought property not the rule of representation. Why then shd. the blacks, who were property in the South, be in the rule of representation more than the Cattle & horses of the North."

As a matter of republican theory and basic logic, the alternative (and correct) provision would have been that slaves didn't count at all. The "compromise" led to increased political power for slaveholders, above and beyond what they would have had under a proper theory of representation. It was in there solely because the slaveholders demanded protection for their interests in the Constitution.
 

"My comment was how the Senate in practice was more [at the very least "as much"] about free v. slave than small v. large state and history shows this. Madison's writings on the subject can also be cited. Mark Field can probably supply quotations though not sure what good that does in convincing the resident originalists given past experience."

I hope Brett was not referring to you in his comment about those who want to get rid of the Constitution entirely. It's very clear that isn't your position.

As for the Senate, it's hard to sort out all the factors which went into that. The smaller Northern states made the argument that they needed equal representation in order to protect themselves from the larger states. This wasn't a very persuasive argument -- as Madison and others pointed out, the larger states (VA, PA, MA) had few actual interests in common and there was no likelihood that they would "gang up" on states that were smaller just because they were small. As part of that, Madison made the argument you mention about the real divisions being those between slave and free. Equal representation was voted down several times.

What broke the logjam seems ("seems" because a lot of it was off the record and we have to reconstruct it) was the agreement between those smaller Northern states to support protections for slavery in order to get some of the Southern states to support equal representation and some other provisions. When the equal representation clause finally passed, it was because NC and SC switched their votes.

Most likely, the deal included the following:

1. All the pro-slavery provisions, including the 3/5 clause.
2. The Northwest Ordinance.
3. Equal representation in the Senate.
4. Congressional power to regulate interstate and foreign commerce.
 

"James Madison and others also saw it as much about protecting slaves states as "small" states generally." [a sentence from my comment]

Yeah, the last decade or so has seen a lot of revisionist history in that vein. A big push is on to delegitimize the Constitution.
[Brett's reply]

He appears to be confusing me (and perhaps you) a pair of slavery apologists with Dilan.
 

"This is wrong both theoretically and historically."

Oh, really? There being no clause relating to the representation of women and children, I suppose you'll have no trouble at all demonstrating that the default practice was that groups lacking the franchise didn't count in apportionment.

Your Roger Sherman quote was a proposal for an explicit clause denying that slaves not count in apportionment, a 0/5ths clause as it were. No clause would have been suggested by him if the default was slaves not being counted. Both Sherman and Gerry wanted an explicit rule on the subject, not for it to be left unstated.

The slave states wanted no clause at all on the topic, as just not mentioning it would have given them the win.

Again, the 3/5ths compromise was a compromise. I seriously object to it being characterized as purely pro-slavery.
 

Maybe, Mark Field can post that summary of how states apportioned in 1787.

They were not apportioning like we do today. This "really" is useful to know when judging just how much was given up with the 3/5 Compromise. States that were apportioning by taxpayer, elector or the like counting 3/5 of slaves (rather "other persons") were "compromising," but not quite in the way being proposed.

I don't think the clause is "purely" pro-slavery myself. But, find such extreme arguments tiresome much of the time anyways. It did clearly help slavery and slave states at the time saw it as slavery protecting.
 

"Oh, really? There being no clause relating to the representation of women and children, I suppose you'll have no trouble at all demonstrating that the default practice was that groups lacking the franchise didn't count in apportionment."

You're misreading what both Sherman and Gerry said, and you're misunderstanding the basic theory. As Joe points out, you're also ignoring what I've previously posted here about apportionment in 1787 (which I'm not going to bother to repeat because I doubt it will have more impact this time anyway).

Just to deal with the more basic flaws, Sherman's proposal expressly referred to "free inhabitants". It said nothing about the franchise, since that had nothing to do with the issue. Sherman was stating the default assumption. That assumption derived from the whole history of English "rotten boroughs", as well as basic Lockean theory.

The issue with slavery was not that slaves lacked the franchise, since lots of people lacked the franchise, including not just women and children, but many adult white men. The issue with slavery was that the slaves were treated by the South as property (as Gerry said), not as independently acting citizens. There was no reason to count them, when everyone understood that doing so simply increased the power of slaveholders.

Nor is it justified to point to women as "left out". They weren't under Sherman's proposal. But even if they had been, it would be silly to use one injustice to justify another.

 

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