Tuesday, July 10, 2018

Cruising the Web

Congratulations to Judge Brett Kavanaugh for his nomination to the Supreme Court. I hope he enjoyed the announcement last night and now is ready for the storm heading his way. I think, from what I've read from people I respect, that this is an excellent choice. But be prepared for a really ugly confirmation process. One reason I'd been hesitant about nominating Kavanaugh was because I dreaded having to relitigate the Starr investigation and Bush administration which will surely happen.

I was impressed that Trump was able to keep this secret right up to the announcement. One benefit of his history in reality TV is he knows how to stage a moment like this.

For those like the senators from Maine and Alaska who worry that he is committed to overturning Roe, here is what he said at his confirmation hearing 12 years ago.
Of course, as an appellate judge, he would have to regard it as a binding precedent. But, if he repeats those words in his hearing, I don't see Collins or Murkowski voting against him.

Another issue that we can expect to come up, and CNN's Jim Acosta is already bringing it up, is that Kavanaugh has spoken against allowing civil suits to be brought a sitting president. Once can imagine that Trump might be interested in such a position. However, Christopher J. Scalia, Justice Scalia's son, looks at what Kavanaugh actually wrote and it's clear from the text that he was saying that it was up to Congress to change the law, not that the Supreme Court shouldn't have allowed the Paula Jones suit against Bill Clinton.

You see, that's what textualism is - actually looking at what someone wrote and understanding the clear meaning of what he said, not reading a blast memo from whichever group sent that information to Jim Acosta.

I thought it was funny all yesterday and over the weekend as Democrat after Democrat came out announcing their opposition to whomever Trump nominated. They didn't even pretend to care about the actual nominee's credentials or judicial ideology. That's fine. We know they're going to oppose him. But they always seem to want to put forth litmus tests of actual cases that they want the nominee to commit to ahead of time. They want a nominee to support abortion rights and announce it in the confirmation hearings. But not even Ruth Bader Ginsburg did that. She solidified the precedent of refusing to answer questions on specific issues that might come before the Court.

Akhil Reed Amar, a Yale Law School professor and proud Democrat, has a column in the New York Times making "A Liberal's Case for Brett Kavanaugh.
The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.
He actually taught Kavanaugh at Yale and, despite his support of Merrick Garland, writes,
But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh.
Amar also admires Kavanaugh's intellectual approach to judging.
Most judges are not scholars or even serious readers of scholarship. Judge Kavanaugh, by contrast, has taught courses at leading law schools and published notable law review articles. More important, he is an avid consumer of legal scholarship. He reads and learns. And he reads scholars from across the political spectrum. (Disclosure: I was one of Judge Kavanaugh’s professors when he was a student at Yale Law School.)

This studiousness is especially important for a jurist like Judge Kavanaugh, who prioritizes the Constitution’s original meaning. A judge who seeks merely to follow precedent can simply read previous judicial opinions. But an “originalist” judge — who also cares about what the Constitution meant when its words were ratified in 1788 or when amendments were enacted — cannot do all the historical and conceptual legwork on his or her own.

Judge Kavanaugh seems to appreciate this fact, whereas Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments.

A great judge also admits and learns from past mistakes. Here, too, Judge Kavanaugh has already shown flashes of greatness, admirably confessing that some of the views he held 20 years ago as a young lawyer — including his crabbed understandings of the presidency when he was working for the Whitewater independent counsel, Kenneth Starr — were erroneous.

Although Democrats are still fuming about Judge Garland’s failed nomination, the hard truth is that they control neither the presidency nor the Senate; they have limited options. Still, they could try to sour the hearings by attacking Judge Kavanaugh and looking to complicate the proceedings whenever possible.

This would be a mistake. Judge Kavanaugh is, again, a superb nominee.
That's an old-fashioned approach to a judicial nomination - to admit that one doesn't like the president or his ideology, but to admire the quality of the nominee. We don't get much of that these days.

Ilya Shapiro of Cato, speaking from the libertarian perspective, is also praising the nomination.
In his 12 years on the D.C. Circuit, Judge Kavanaugh has demonstrated a devotion to legal text and constitutional principle. I admire his dedication to the Constitution’s structural protections for liberty, his steadfast defense of the rights of speech and religious conscience, and most notably his willingness to question the excesses of the regulatory state. He has repeatedly affirmed that judges serve not as the champions of faction, but as the readers of laws and adjudicators of disputes....

I wish him a speedy confirmation; there is literally nothing in his record that justifies the smears and demagoguery he’s about to face.

Ed Whelan provides a good introduction to Kavanaugh's judicial record. Here is how Kavanaugh has ruled on one of the issues I care most about.
Taming the administrative state. The D.C. Circuit has a particularly heavy caseload in the field of administrative law, and Judge Kavanaugh has won high marks for restraining the administrative state within legal bounds.

Kavanaugh is a strong critic of the Chevron principle of deference to administrative agencies — both of the foundation of that principle and of the manner in which it is often exercised. He has earned acclaim for “cabining” the Chevron doctrine by helping to develop an exception to it for “major questions” of policy.

In one of his early dissents, Kavanaugh argued that limitations on the president’s ability to remove the members of the Public Company Accounting Oversight Board violated the president’s executive authority. Invoking the principles of originalism advocated by Justice Scalia and Justice Thomas, Kavanaugh emphasized that “the constitutional text and the original understanding . . . are essential to proper interpretation of our enduring Constitution.” Two years later, when the Supreme Court embraced Kavanaugh’s dissent, Scalia and Thomas were part of the five-justice majority.

In a dissent earlier this year, Kavanaugh found the structure of the Consumer Financial Protection Bureau (a creation of the Dodd-Frank Act of 2010) to be unconstitutional. The concentration of power in, and the resulting threat to liberty from, so-called independent agencies within the executive branch — independent, that is, of the supervision and control of the president — have been tolerated because such agencies “divide and disperse power across multiple commissioners or board members.” But, Kavanaugh determined, the CFPB poses an unprecedented threat, as it is headed by a single unaccountable individual.
He's also strong on gun rights and religious freedom. He is a "committed textualist" which is just what conservatives wanted.
As Kavanaugh succinctly stated in a book review published in the Harvard Law Review, “The text of the law is the law.” He has reiterated this view in many of his opinions.

In Fourstar v. Garden City Group, Inc. (2017), he wrote, “It is not a judge’s job to add to or otherwise re-mold statutory text to try to meet a statute’s perceived policy objectives. Instead, we must apply the statute as written.” And in District of Columbia v. Department of Labor (2016), he write, “As judges, we are not authorized to rewrite statutory text simply because we might think it should be updated.”
That is all music to my ears. I'm excited about this nomination.

For conservatives who are unhappy with the Kavanaugh pick simply because he worked for George W. Bush who placed him on the D.C. Circuit, get over yourselves. Allahpundit dismisses that talking point.
Some righties will grumble about the pick, partly because of Kavanaugh’s Bush pedigree and partly because Barrett was the grassroots favorite for reasons that still aren’t entirely clear to me. The Bush criticism strikes me as particularly stupid. Bushes 41 and 43 controlled the party for the better part of 20 years; if you were an ambitious conservative legal up-and-comer, naturally you’d make nice with them and go to work for them. Not only were they the only conservative game in town, they were the only Republican game in town. Who was Kavanaugh supposed to align with circa 2003, when Trump was still more than a decade away from politics? Pat Buchanan?

sue to enforce it
He’s been a conservative judicial star at the appellate level for more than 10 years. If you prefer Barrett to him because he has an opinion or two to his record that you dislike, that’s not because Barrett is some unusual savant of conservative jurisprudence. It’s because she has no record. She’s been a judge for less than a year. Eighty percent of the fascination with her, I’m convinced, is due to the fact that she’s a blank slate: You can simply assume she’d take the perfect conservative position in any case because she … hasn’t been asked to take any positions yet. As for Kavanaugh’s credentials, let me quote Sean Trende of RCP:
Since Scalia’s death, though, conservatives have been without an intellectual leader. Kennedy certainly would not fill that role. The chief justice might have, had he been named an associate justice as was originally planned, but he is nevertheless chief justice. Gorsuch and Thomas are likely too idiosyncratic; they are more in the vein of William Douglas than William Brennan (these are admittedly fine hairs to split, but I think they are illustrative if taken for what the approximations that they are).

Judge Kavanaugh, however, could fill this role. His conservative credentials are nearly impeccable, and those concerned about his dissent in the Obamacare cases should remember Scalia joining Brennan’s opinion striking down flag-burning statutes. Additionally, he is, quite simply, one of the most brilliant individuals I have ever encountered. He is also a truly gifted writer. At Kirkland, we were instructed to make our briefs “sing”; his first drafts were legendary for already being full operas, and that was before he turned to the task of rewriting them dozens of times. Kavanaugh would arrive to the court well-respected by the other justices, as most of them have hired his clerks (which is unusual in this day and age). I suspect that in two decades, constitutional law nerds would speak of the Kagan-Kavanaugh clashes with the same reverence my generation holds for the Brennan-Scalia battles.
Whatever quibbles that some conservatives have about Kavanaugh, he is definitely more reliably conservative than Justice Kennedy. I'm on board with Allahpundit's conclusion
HA (Hot Air) readers know that I’m not prone to defending Trump reflexively, but I’ll do it when he deserves it and he does deserve it if Kavanaugh is the choice. It’s either a very good pick or a stellar, game-changing one. It’ll take time to discover which it is, but there’s zero Souter potential here. He’s the surest thing ideologically — by far, I think — of any of the four finalists. In that sense, he was the conservative choice in every sense of the word.
Now, buckle up for the confirmation fight. It's going to be a hell of a ride. Not only does McConnell have to worry about Lisa Murkowski and Susan Collins deciding that he isn't a firm enough supporter of upholding the right to an abortion, Rand Paul has also made noises about opposing Kavanaugh because of his association with how Bush conducted the fight against terrorism. But Paul might cave after grandstanding for a bit just as did on the Pompeo nomination to Secretary of State. And Murkowski and Collins would probably be more likely to go along with Kavanaugh than with Amy Coney Barrett who had publicly cast doubt on the reasoning used in Roe and its impact.

Some on the left are simply silly. In their futile fury over Trump getting another Supreme Court nomination, there are those who are arguing that the solution is for the Democrats to pack the Supreme Court if/when they get control of both the White HOuse and the Senate. Ian Millhiser writes at Slate to defend and praise FDR's court-packing plan. His argument is that the Court of that era was making awful rulings (ones that progressives disliked.)
So, when Roosevelt announced his court-packing plan, he wasn't confronted with a choice between a judiciary that was committed to upholding the Constitution and one that would simply provide a rubber stamp for the New Deal. He choose between a nation subject to the arbitrary desires of five unelected men in robes and a nation governed by men and women elected by the people. Given two distasteful options, he picked the lesser evil.
Because, sure, if leftists don't like the rulings, they should just change the rules. That's the way to do it, right?

And, if that paves the way for a modern-day court-packing because there are too many judicially conservative justices, by all means, let's do it!

Scott Lemieux writes in the New Republic to applaud this idea and recommend that Democrats keep this card in their back pocket just in case they need it later.
Even worse, the decisive nominations would be a product of a Republican Senate refusing to allow a president who won two majorities to fill a vacancy, and then confirming multiple nominees of a president who lost the popular vote by a substantial margin. Court-packing is bad, but allowing an entrenched majority on the Supreme Court to represent a minority party that refuses to let Democratic governments govern would not be acceptable or democratically legitimate, either.

For this reason, it would be very unwise for Democrats to rule anything out. They should be careful not to blow up the power of judicial review without good cause. But if desperate Republicans try to establish an anti-Democratic rearguard on the Supreme Court before they get swept out of office, Democrats have to leave all options on the table.
Dylan Matthews at Vox looks at the pro and con arguments on court-packing.

Gee, could the left think of any campaign issue better suited to get Republicans out to the polls this year or in 2020 than musing about court-packing?

As Kevin Williamson writes, the Democrats are just angry that the Republicans have taken their tools and been better at using them.
Republicans, of course, are driven by the same self-interest that drives any ordinary politician, and unilateral political disarmament was never a serious option for them. Republicans will use every tool at their disposal, something the Democrats ought to keep in mind when they consider establishing new political precedents, as with the current boomlet in support of packing the Supreme Court — expanding the number of justices on the Court beyond the current nine and filling those bonus seats with reliable Democratic hacks on the model of Justices Kagan and Sotomayor — as soon as the opportunity presents itself.

This is a lesson the Left keeps failing to learn.

The Democrats believe that we are in a national crisis because the Republicans have spent the past couple of decades pulling more or less the same shenanigans that Democrats have been offering up since they were the party of slavery and implacable opposition to the central bank — with one critical difference: Republicans are better at it.

A lot better at it.
Williamson goes through the history of gerrymandering as an example as he points out that Democratic-dominated state legislatures had been gerrymandering for years. Republicans just happened to gain control over both houses of 26 state legislatures (and one more if we count the supposedly non-parti san Nebraska legislature) after the 2010 elections just in time for the latest rounds of redistricting. That was up from the 14 legislatures that they had total control over going into the 2010 elections. If there is a year when it was disastrous for the Democrats to be decimated at the state level, it was a year ending in zero - because those are the legislatures that have control over redistricting. Thanks, Obama.

By the way, Republicans now control both chambers of 30 state legislatures.

Every decade, the abilities of computers to design a legislative map that takes advantage of party and voting information have drastically increased. Where those drawing the redistricting maps would be trying to use information and adjust borders by hand and spending weeks to complete those maps. Now they have powerful computers that can spit out all sorts of maps in minutes or less. So Williamson is right - the Democrats used to do the same thing, but the timing and technology and electoral victories have allowed the Republicans to do the same thing, but just be better at it. That could all change after 2020 and if it does, don't expect the Democrats to suddenly refuse to use those same tools. I well remember in North Carolina, where the Democrats have always been in charge, Republican politicians used to scream that we should have an independent commission to design redistricting maps, a proposal Democrats always pooh-poohed. But as soon as the GOP gained control over the N.C. legislature, suddenly they lost interest in that idea and the Democrats, in N.C. and many other GOP-controlled states, immediately picked it up as a talking point.

Williamson goes on to discuss how Republicans have become as ruthless as Democrats on Supreme Court nominations.
Why did Senator Mitch McConnell put the screws to Merrick Garland when Barack Obama nominated him to the Supreme Court? For one thing, to demonstrate to the lordly president that “elections have consequences” is a standard that can hobble presidents as easily as empower them. For another, to protest specific usurpations of congressional power by the Obama administration. But mostly, because he wanted to — and because he could. And the reason he could is thanks to Joe Biden and Teddy Kennedy.

For a generation, Democrats have been pretending that every Republican nominee to the Supreme Court is a uniquely monstrous threat to the Constitution and the republic — hell, they’ve started that already this time around without even knowing who the nominee is. People get used to that kind of pedal-to-the-metal, balls-to-the-walls politics, and they become jaded and bored by it. Senator McConnell knew that the New York Times would scream about his suffocating Judge Garland’s nomination, and that Berkeley leftists would rage about the “stolen” seat on the Supreme Court, but he was clever enough to know that none of that noise would matter very much. Either a Republican president would choose a new nominee after the 2016 election or a Democratic president would proceed on the same or a similar course. It was a low-risk wager for Senator McConnell....

Harry Reid was a devious, lying snake without an honorable bone in his body, but Senator McConnell is, for the moment, magister ludi.
Both redistricting and choosing a Supreme Court nominee are political acts. The Democrats, since the Bork nomination, created this game and now they don't like the playing field. So they're resorting to discussions of court-packing. Do they think that Republicans wouldn't turn around and use that same tool afterwards if they ever get control of the Senate and White House again after the Democrats did that?
Choosing a nominee for the Supreme Court is political, too, as political as redistricting, and so is the process of having a nominee confirmed by the Senate. That’s natural, and there isn’t anything inherently wrong with that. The questions are: 1) Political to what extent? 2) Political in what character? 3) Political to the exclusion of all other considerations? For a generation, Democrats have answered those questions: 1) Entirely; 2) As dishonest as necessary; 3) Yes. They tried to convince the American people that John Roberts was Jack the Ripper and that Neil Gorsuch was John Wilkes Booth. The market for wolf tickets isn’t what it once was.

The current push on the Left to expand the no-quarter approach to Supreme Court politics by introducing court-packing schemes is genuinely dangerous for the country. That’s worth thinking about, but it is also worth considering — not that I’ll shed any tears over it — that it’s dangerous to the political aspirations of the Democratic party, too. Republicans have bested them in all their own favorite games, gerrymandering, filibusters, and weaponizing congressional procedure prominent among them. They’d probably be better at court-packing, too. The Republicans may look divided and in disarray in the Trump era — and they are, of course — but it is the Democrats who have the more pressing long-term coalitional problem of being a party in which little old white liberal ladies lord over a growing and politically dynamic constituency that is much younger, much browner, and surely wondering why its members’ most pressing priorities have to be signed off on by that ghastly butcher Cecile Richards or that puffed-up PTA president Dianne Feinstein. It isn’t obvious that Latino ethnic-solidarity politics is going to be a real big winner in UAW country. That permanent Democratic majority, like Hillary Rodham Clinton’s presidency, is always on the way but never quite arrives.

The Constitution builds a triple-wythe wall around federal power: first, through the enumeration of powers in the main articles and the enumeration of rights in the amendments; second, through the division of powers among the three branches of government and, critically, within the branches as well, through the subdivision of the legislative and judicial branches; third, through the division of powers between the states and the federal instrument they created to serve their joint ends. Mr. Madison’s architecture is elegant, creating a national apparatus that has the power and motive to act decisively within its defined theater of operation, meaning issues such as war, immigration, and international trade that are truly national in scope. The federal government is not intended to oversee the filling of potholes in Sheboygan or the selection of public-school textbooks in Muleshoe, but it is only an instrument of men, men are imperfect and ambitious, and anybody who ever has used the word “foolproof” with great confidence has not spent sufficient time in the company of the fools resident in our great nation’s depraved and hideous capital. Still, it is a system that works when we let it work rather than subverting it to narrow, short-term, parochial ends.

Sure, some future Democratic Congress could pass a law expanding the Supreme Court from nine seats to 13. And some future Republican Congress could expand it from 13 to 17, or 33 or 71. And the bile of Washington will continue to seep up through the floorboards of American domestic life, to no one’s real benefit.

We could do better than Joe Biden’s America if we wanted to. Learning to want to is half the battle.

Jay Cost reminds us
that the Founders crafted our government based on the assumption that the people would possess civic virtue.
Civic virtue implies a series of obligations shouldered by the citizenry, which can be appreciated as analogous to our rights. Just as we have the right to speak freely, we should not speak dishonestly. Just as we have the right to peacefully petition our representatives for the redress of grievances, we should not be uncivil toward them. Just as we have the right to vote, we should endeavor to educate ourselves so we make an informed vote. Just as we have the right to enjoy a government of laws and not of men, we should not be disdainful of the lawmaking process, at least so long as there are ways to reform it. Just as we have freedom of conscience, so we should respect that the consciences of others may lead them to divergent conclusions. Just as Congress is not allowed to single out individuals or groups with bills of attainder or ex post facto laws, so we should try to think beyond our own personal tribe and contemplate the good of the whole nation.

Our rights are essential to a republican form of government, because they enable “we the people” to deliberate. This is how public opinion, as expressed through the medium of representative government, becomes a benevolent sovereign of the nation. The same is true of civic virtue, for it implies not only a careful use of our rights but also a respect for — and deference to — the rights of others.

I don’t know what to do about the lack of civility in our civil discourse. There is a growing sense of entitlement, a declining notion of duty, and insufficient anxiety over the degradation to our politics. Probably very little can be done. But it is worrisome.
Who would describe the American people today as possessed of civic virtue? Just dive for a few minutes into any political debate on Twitter or read the comments section on any political story. Most people are polite in public except when politics is involved. Even sports rivalries are basically polite next to political rivalries. usast week I attended a Washington Nationals game against the Boston Red Sox at which the home team Nats were creamed. At least in my section of cheap seats, it seemed evenly balanced between Nats and Sox fans. Unlike many home games, I couldn't tell from the crowd reaction if something good had happened for the home or visiting team. But people were still friendly and polite to each other in the crowd. And when the game was over and there were fireworks to celebrate it being the day before the 4th of July, everyone dropped their team loyalties, ignored the name on their T-shirts and just enjoyed the display together. We then all crowded on the Metro together and continued to be friendly. Can you imagine those sorts of friendly interactions if people had been wearing partisan T-shirts? Of course not. It's really a sad moment. It's not a unique moment in our nation's history. Things are certainly less violent than in the late 1960s and 1970s, but is that the standard which we want to use?

If you are like me and enjoy Jay Cost's explanation of today's politics through the prism of what the Founders wrote about the system they were creating, you might enjoy this thread in which Cost explains how we don't have a system of co-equal branches and that the Founders always planned for the Legislative Branch to be the first and most important branch.

Read the rest. He is so correct that, in so very many ways, partisanship and a desire for fast actions has led Congress to abdicate its power to the executive branch, a state of affairs that would have horrified the Founders. And this has been going on since the the early years of the 20th century so it's nothing new and nothing that could be fixed in just a couple of years. And I didn't know that this was the origin of the idea that the three branches were "co-equal."

You might enjoy the podcast series by Jay Cost and Luke Thompson that examines the Founding. It is non-partisan and is like an advanced class in the Constitutional Convention and arguments over ratification.

One of the brave Iranian women who danced in the street has now been sentenced to four years in prison.
Everyone on both sides of the ideological aisle should be publicizing this massive violation of human rights. All the mini-injustices against women that get people in the West all excited pale against what women in Iran must endure. Even gross sexual abuse from a creep like Harvey Weinstein is nothing compared to being sent to prison for dancing and singing in public.