Thursday, July 12, 2018

Cruising the Web

The Washington Post has a column
by two professors of economics and data science at foreign universities, Elliott Ash and Daniel L. Chen. They have a methodology to assess how partisan an appellate judge is based on how often he/she makes rulings or writes dissents compared to other judges on a panel when looking at the party of the president who appointed him/her. Their analysis purports to show that Judge Kavanaugh voted on a more partisan basis, voting in opposition to Democratic-appointed judges, than other Republican-appointed judges. Of course, such an analysis treats every case the same and doesn't examine the reasons why Kavanaugh ruled the way he did or why the other Republican-nominated judges ruled differently than he did. Nevertheless, these researchers do conclude that he is "an uncommonly partisan judge, even compared to other federal appeals court judges. And on what does this terribly partisan judge base his decisions?
He justified his decisions with conservative doctrines far more than his colleagues, citing politicized precedents consistent with other Republican-appointed judges, invoking the original Articles of the Constitution (consistent with the Originalist jurisprudence favored by conservative jurists) and using the language of economics and free markets.
Oh no! The horror! A judge who bases his decisions on the Constitution and precand lose edents! Throw the country in that briar patch, please. For Republicans feeling a bit iffy about the Kavanaugh nomination, this article should make them feel a whole lot better.

IBD has a hilarious collection of the extremely dire leftist predictions of what Kavanaugh's confirmation would bring. We should all prepare to lose rights, even "hemorrhage basic rights," such as voting rights and workers' rights. Without Kavanaugh being on the record on abortion except for statements that he would respect Roe as binding precedent in his appellate court confirmation hearings, they are determined that women will lose the right to an abortion and affordable health care is a thing of the past. And now Trump will be protected from any criminal investigation even though the Office of Legal Counsel determined when Bill Clinton was president that a president could not be indicted in a criminal investigation. So the precedent already exists and stems from the Clinton era, but nevermind.

Potential Democratic nominee for president, Kamala Harris, thinks that, with Trump getting to replace Kennedy, "We're looking at a destruction of the Constitution of the United States." Wait, I thought we were supposed to be worried about Kavanaugh justifying his decisions with the actual text of the Constitution.

Since these leftists always dial their outrage meters up to about 15 with everything Trump and anyone associated with him does, it's hard to get worked up by their apocalyptic predictions. Just remember that they have said similar things about every single Republican nominee to the courts.

Here is what leftists said about Anthony Kennedy when he was nominated.
On Nov. 20, 1987, the president of the National Organization for Women proclaimed that the confirmation of Anthony Kennedy would be a "disaster for women."

"I'm here to say it is totally unacceptable for a sexist to sit on the Supreme Court," said Molly Yard, making NOW the first major interest group to come out against Kennedy. The grounds for his alleged sexism were previous memberships Kennedy held in all-male private clubs.
They've been crying wolf for 30 years. Do they convince anyone who doesn't already agree with them when they launch such hyperbolic bombast?

David French is struck by the hyperbolic fears from the left that either "millions" or "thousands" of lives are threatened and contraception will be banned.
Look at the rhetoric. “Millions” of lives threatened. A “death sentence” for thousands. And contraception . . . banned?

Keep in mind, this is for a nominee so mainstream — so much a part of the conventional Republican establishment — that it’s easy to imagine a President Rubio or a President Jeb Bush putting him on the Supreme Court. He’s not remotely radical. His jurisprudence is squarely within the originalist tradition, and the main critique endured during the run-up to his nomination (including from me) was that he was too safe, that the Court needed a bolder choice.

Look, I know better than most that Trump has escalated partisan combat and has exacerbated American polarization. Nothing I say should be construed as minimizing his contribution to our political disease, but our politics are still deeply dysfunctional even when Trump behaves no differently than any other GOP president.

Just in the last year we’ve seen extraordinary overreactions against normal Republican tax plans and normal Republican Internet reforms. During the Obama administration, huge sections of the Republican base — and even the future POTUS — obsessed over bizarre birther conspiracy theories.

This kind of nonsense will always be with us, but it’s important to call it out, reject it, and as much as possible confine it to the fringes. But all too often extremist rhetoric is as mainstream as it gets. That’s a problem now, and it will be a problem long after Donald Trump leaves office.

All this outrage is going to make decisions of Democratic senators in red states even more difficult. They really are stuck between a rock and a hard place, as former Democratic operative Doug Schoen writes,
His affirmation of following precedent perhaps makes red state Democrats view him as less dangerous to the party’s platform, and therefore easier to justify confirming to their Democratic base.

His support of legal precedent [on Roe] provides Democrats with some hope that he may support gay rights, abortion rights, and other liberal causes.

For these red state Democrats, confirming Kavanaugh could even garner them some Republican-leaning votes in their own states.

There is also the possibility, though, that far-left Democrats from deep blue states would condemn those senators who vote to confirm Kavanaugh, leading to an even greater divide within the Democratic party.

If Democrats stand firm on opposing any Trump nominee, however, they run the risk of losing seats and perhaps even the chance of regaining a majority.

Ultimately, this is a lose-lose situation....

As an example, during the 2017 Gorsuch confirmation process, Democratic Senator Claire McCaskill of Missouri agonized before ultimately voting against him. Tellingly, her approval rating dropped by the year’s end in a state that President Trump won by a 20-point margin. Her opponent in this year’s election, Josh Hawley, has already released an ad saying McCaskill wants “liberals” on the Supreme Court.

As a Democrat running for reelection in a solid red state, McCaskill does not have the same freedom to oppose Kavanaugh with an election only months away.

The truth is, even if every Democrat votes against Kavanaugh, he will still be confirmed if no Republican votes against him. Democratic votes are more symbolic than necessary.

Which means that red state Democrats should vote to confirm Kavanaugh if they hope to stay in office. This is the only way Democrats maintain the ability to take back Congress.

Now more than ever, Democrats must recognize that although we are in an age of political polarization, voting across party lines might actually benefit the party itself. It is time to get behind Brett Kavanaugh and confirm his nomination to the Supreme Court.

Jonathan Adler, writing at The Volokh Conspiracy
gives a history of filibusters of judicial nominations. There is no long, storied tradition of such filibusters as Republicans seemed to point to when Reid got rid of it for lower court nominations and as Democrats argued when Schumer got rid of it for Supreme Court nominations. Judicial filibusters have been very rare and the first one was used in 1968 when President Johnson tried to elevate Justice Abe Fortas to Chief Justice. There were a handful after that, but none of them were able to block a vote on a nominee.
. Over the next 35 years, cloture motions would only be filed on six more judicial nominations, none of which were blocked. (Two of these nominations were for the Supreme Court. The others were for lower courts.)

Prior to 2008, cloture motions to end debate had only ever been filed on four Supreme Court nominations: Fortas in 1968, William Rehnquist in 1971; Rehnquist again in 1986 (for elevation to Chief Justice) and Samuel Alito in 2006. (Indeed, most of the Senate Democrats who voted against cloture of the Gorsuch nomination had voted against cloture on Alito too.) While most Supreme Court nominees received overwhelming support (because most Senators were inclined to support any highly qualified nominee), this was not always the case. Justice Clarence Thomas was only confirmed 52-48, yet no filibuster was attempted. Indeed, no cloture motion was even filed.

The lack of cloture motions did not mean that all judicial nominations were unanimous affairs. To the contrary, some judicial nominations were defeated (Carswell, Haynesworth and Bork being three prominent examples) and others were close calls. Yet even when judicial nominations lacked the necessary super-majority support (two-thirds of those present and voting prior to 1975; three-fifths after), nominees went to the floor for up-or-down votes. Filibusters weren't even attempted.

The use of the filibuster to stall or block judicial nominees did not begin in earnest until 2003, when Senate Democrats sought to block the confirmation of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit, in part because they feared the President Bush was positioning Estrada for a potential Supreme Court nomination. Several more filibusters of Bush nominees followed, until the so-called "Gang of 14" deal temporarily took the judicial filibuster off of the table. Senate Republicans responded in kind, filibustering a handful of President Obama's judicial nominees until the cloture threshold for nominations was lowered to a simple majority. (I covered some of the history here.)

The departure from historical practice was not Senator Harry Reid's decision to invoke the "nuclear option" to end lower court filibusters nor Senator Mitch McConnell's decision to do the same for the Supreme Court. The departure from historical practice was to attempt to filibuster judicial nominees in the first place.

I have never been a fan of filibusters of nominations – executive or judicial, whether made by a Republican or Democratic President. Reasonable people may disagree. What's not reasonable – or accurate – is to pretend there was a Senate tradition of nomination filibusters. That's simply not the case.

David Brooks provides a nice history of how we have reached the situation today where there are dozens of conservative-minded judges/potential judges for a Republican president to nominate. That was not true even 30 years ago.
Kavanaugh is the product of a community. He is the product of a conservative legal infrastructure that develops ideas, recruits talent, links rising stars, nurtures genius, molds and launches judicial nominees. It almost doesn’t matter which Republican is president. The conservative legal infrastructure is the entity driving the whole project. It almost doesn’t even matter if Kavanaugh is confirmed or shot down; there are dozens more who can fill the vacancy, just as smart and just as conservative.

This community didn’t just happen; it was self-consciously built. If you want to understand how to permanently change the political landscape, it’s a good idea to study and be inspired how it was done.
It used to be just about everyone in the legal establishment was a liberal who had cut his/her teeth in the New Deal/Great Society era. The law schools were liberal and the Ford Foundation funded a lot of legal aid organizations and causes and "to dominate the law schools." So some conservative multi-millionaires decided to start funding conservative legal organizations. The founding of the law and economics movement helped move conservative ideas into the mainstream. Remember the fear that Brett Kavanaugh applies economic ideas?

After that, the key action was the founding of the Federalist Society. You will hear liberals refer to it today like it's some secretive "Skull and Crossbones" sort of dark organization casting a web over the courts. That is just ridiculous. It's a debating society.
In 1982, a group of law students including Lee Liberman Otis, David McIntosh and Steven Calabresi founded the Federalist Society, which was fundamentally a debating society. They could have just hosted events with like-minded speakers, but debates were more interesting and attracted better crowds.

The Federalist Society spread to other law schools and beyond pretty quickly. It turned into a friendship community and a professional network, identifying conservative law students who could be promoted to fill clerkships.

As Teles points out, the key features of the Federalist Society were the limits it would put on itself. It did not take stands on specific policy issues. It did not sponsor litigation on behalf of favorite causes. It did not rate judicial nominees the way the American Bar Association did. It did not go in for cheap publicity stunts, like the Dartmouth Review crowd of that era did.

It wielded its immense influence indirectly, by cohering a serious, disciplined community and letting it do the work.

Otis, McIntosh and Calabresi all went to work in the Reagan administration. They are now part of a vast army of conservative legal cadres, several generations deep, working throughout the system or at organizations like the Center for Individual Rights and the Institute for Justice.
Doesn't that sound dark and dire? Of course, there would have been no need for such an organization if law schools weren't almost uniformly so liberal. And liberals murmuring incantation against the dark arts of the Federalist Society have no problem with the Ford Foundation's role on the left.

As a conservative, I'm quite happy that Trump has outsourced his choices on judges to the conservative legal establishment. As Brooks points out, he's been basically ignoring the conservative foreign policy and economic establishments. Given that polls show that about a quarter of those voting for Trump did it on the basis of his possible judicial nominations, he knows that this is the one area of his campaign promises that he can't ignore.

In fact, since he's basing his nominations on the advice of this conservative legal establishment, the ensuing nominations wouldn't be all that different than if Ted Cruz or Marco Rubio had won the presidency. And that's a relief.

Meanwhile, 538 has an interesting analysis of what polls on abortion show. Perry Bacon Jr.'s analysis shows that, although Democrats are mostly pro-choice and Republicans are mostly pro-life, discussions in the public sphere seem to act as if the issue were totally 50/50 Democrat/Republican split.
And the public, unlike political elites, is not completely divided along party lines on this issue. There is a large bloc of Republicans who support abortion rights. There is a smaller, but still sizable, group of Democrats who oppose abortion rights.

Yet we aren’t likely to hear those voices. Why not? Because they have been disempowered in each party. The politics of abortion are in some ways a story about party coalitions, and each party has a bloc that dominates how its party handles the issue (conservative Christians in the GOP, women’s rights activists among Democrats). Because of the power those blocs have, being anti-abortion rights has become a part of the identity of the Republican Party, even if its voters don’t all share that stance; similarly, the Democratic Party is the pro-abortion-rights party.
The only time we hear about pro-choice Republicans is when the vote on a nominee is close and suddenly Susan Collins and Lisa Murkowski hold the deciding votes. We heard a bit from Democrats who are supposedly pro-life when the issue of government funding of abortion was being debated in the Obamacare debates. President Obama wrote a letter saying that the law wouldn't mandate such support and those pro-life Democrats then supported the bill. Remember that when we hear panic over whether or not the federal government should support Planned Parenthood or whether nuns should be forced to fund abortifacients.

Ramesh Ponnuru reminds us
that, even if Roe v. Wade were overturned, that doesn't mean that abortions would be banned. The debates would then return to the states which would have powerful debates over what to do. And any decision that a state legislature might make could be changed if different politicians were elected.
A recurring theme in the abortion debate has been that Republicans should be careful what they wish for.

This line of argument holds that a Supreme Court decision overturning Roe v. Wade, which made abortion a constitutional right in the U.S. 45 years ago, would be a disaster for the party. Anti-abortion politicians would no longer be able just to make rhetorical stands, but would be pressed by their supporters to enact actual bans on abortion — and that prospect would awaken a pro-choice majority that has been complacent under Roe. A voter backlash would both preserve legal abortion and exile Republicans from office.
I think that there would be such a backlash if legislatures outright banned abortions.
In red and especially in purple states, abortion opponents could easily go too far, just as the Roe-backlash theory predicts. A lot of them would want to push for a ban on nearly all abortions as soon as the Supreme Court allows it. That’s what they believe justice requires.

In other places, they would work more incrementally, tightening the restrictions on late-term abortion and regulating abortion clinics more heavily. They would use the law to make abortion an ever-more marginal practice, as they have been doing even while Roe has been on the books. If they followed that course, it’s pro-choice Democrats who would be on the defensive.

My guess is that pro-lifers would choose different approaches in different places, and would debate the question vigorously and sometimes bitterly. The maximalists would accuse the incrementalists of selling out unborn children and being too timid.
It would be a public policy issue in every election at every level for the foreseeable future. And the parties might not be so uniformly pro-choice/pro-life. There would be an opening in many states for politicians who took a moderate position voting to uphold access to abortions up to a point. That's what the 538 data indicate should be happening. And Republicans might come to regret getting what they wished for.
If abortion becomes a predominantly state issue, the party lines might relax. Republicans in blue states and Democrats in red states might be able to take the same views as their voters a bit more often. Religious conservatives who have stuck with the Republicans because of abortion but dislike its economic agenda might feel freer to vote for Democrats — and social liberals who dislike the Democratic economic platform might be more willing to vote for Republicans.

Roe changed the make-up of both parties and its end could change them again. On balance, the change Roe wrought has helped the Republicans. It’s one of the reasons they have more power than they have since before the Great Depression.
If the overturning of Roe makes traditionalists less inclined to vote for politicians based on social issues, it could undo some of the party’s gains. The end of Roe could hurt Republicans, then, less by causing a backlash than by nullifying part of its coalition’s reason for being.

Is this the worst that the Washington Post could come up with on Brett Kavanaugh? They have a story on his finances and it turns out that Kavanaugh piled up tens of thousands of dollar of credit-card debt by buying season tickets for the Nationals for him and his friends. And, wait for it...his friends reimbursed him and he paid back that debt. And he is no longer buying season tickets. Wow! Stop the presses - the guy clearly can't be on the Supreme Court because he...pays back his debts and actually would have the least amount of assets of any of the justices on the Court. He and his wife have been in public service most of their lives and have two daughters going to a Catholic private school while living in one of the most expensive areas of the country. I'm sure there is something terrible in this story for his opponents to exploit, but it really just makes him seem like an average sort of guy who likes baseball and coaches his daughters' basketball teams.

And here is another example of this is the sort of man who will bring about the end of the world as we know it.
Brett’s friendship and mentorship have touched my family in an especially personal way. A few years ago, my husband died. One of the many difficult aspects of that loss was that my daughter had no one to accompany her to the school’s annual father-daughter dance. That first year — and every year since my husband’s passing — Brett has stepped forward to take my daughter to the dance alongside his own.
Yeah, but he's an originalist so he must be eeeeevil!

The Post also had a story yesterday about the "Elite world of Brett Kavanaugh." And this is the opening to that story.
The Chevy Chase Lounge is a neighborhood joint where bartender Tim Higgins is accustomed to bantering with long-standing patrons, including a middle-aged guy named Brett who likes to pop in for a Budweiser and a burger after coaching his daughters’ basketball games.

As he watched the news recently, Higgins learned something else about Brett Kavanaugh: He was among the judges whom President Trump was considering to nominate to the U.S. Supreme Court.

“Most people in Washington tell you what they do,” Higgins said from behind the bar Tuesday, the day after Trump nominated Kavanaugh. “I never knew Brett was a lawyer. I expect we’ll be seeing him in here a lot less.”
Ooooh! The guy is such an elitist that the bartender knows him by his first name because he pops in after coaching his kids' basketball teams. Sure, he grew up in Washington (in an era when it wasn't exactly the expensive, elitist city that it is today) and went to a private school and Yale. But he's also friends with his neighbors and his wife helps organize the neighborhood Fourth of July parade. Wow! That signals an "elite world" right there.

Well, how about this anecdote?
In Kavanaugh’s Georgetown Prep yearbook, he listed himself as the treasurer of the “Keg City Club — 100 Kegs or Bust” and included references to the “Beach Week Ralph Club” and “Rehoboth Police Fan Club.”
He was, apparently, such an alcoholic wannabe that he went to Yale and then Yale Law School and his childhood friend had this to say about him:
“He was always kind of like an old soul,” McCaleb said. “He was more mature than the rest of us. He was always the guy who was going home to do his homework.”
He lives in this elitist world (according to the Post) yet somehow he manages to also be this down-home sort of guy who gets along with all sorts of people who disagree with his political ideology. And he coached his daughter's sixth-grade team to an undefeated season and the citywide championship in the local Catholic youth league. Clearly, this man is just too nice a guy to be confirmed.

I eagerly await the left to attack him for the "elite world" he inhabits.

Gosh, it's fun when you're winning and laughing at them simultaneously.

Yesterday was the anniversary of the Burr-Hamilton duel. Jay Cost has a fascinating thread looking at the exchange of letters between Burr and Hamilton leading up to the duel. We don't know what exactly Hamilton had said to insult Burr since Hamilton refused to tell him.

I just saw Hamilton last week when I was in D.C. It well deserves all the acclaim that it has received. Even though I knew everything that was going to happen, I still was tearing up both when Hamilton's son and then Hamilton died in duels. What a waste. I guess Twitter feuds are still an improvement on dueling to the death over insults.