Ze Kavanaugh Kerfuffle

The story so far: Trump picked Kavanaugh as his second supreme court nominee, and the Democrats were really angry. That was hardly strange, as they were already incensed that Trump had got Neil Gorsuch for what they regarded that as "their" seat that should have gone to Merrick Garland; getting two is Right Out. But whilst getting really really angry is understandable, they lost3: the losers getting angry about losing is rather unattractive. Politics is rough; choice of judges is important, the real question is whether their tactics are useful, the answer is No.

Are their tactics useful?

Getting really angry in a fist fight is sometimes a useful tactic. If your opponent knows you are incensed, and may do irrational things, they may back down rather than take a risk. But this isn't a fist fight; there's plenty of time for reflection on both sides. Being really angry and opposing the nomination with all your might may simply remind people that you aren't mighty enough. And while it may fire up some of your base, it's unlikely to pull people in from the other side that you need to win.


Of course, it plays well with a certain base of supporters, who are also angry, and have been whipped up to worry about their rights being lost. And undoubtedly there will be changes; in which case less political posturing and more questions about stare decisis would be a good idea. But we already have quite enough partisanship. Do we really need more?2

Here are some examples of newspapers that have annoyed me. Leading off with the good ol' Graun from my native UK with Brett Kavanaugh fails to shake hands with Parkland victim's father – as it happened. WTF? Fred Guttenberg is doubtless a nice person but he was there for blatantly political reasons; trying that on was inappropriate; not shaking hands was entirely appropriate on BK's part; the Graun focussing on this one episode is stupid.

But that pales by comparison with the WaPo's blatant lying with Trump suggests that protesting should be illegal. Of course, he hasn't. He instead suggested, quite sensibly, that protesters disrupting the hearing shouldn't be allowed. And, it isn't: after a bit they got cleared out. This isn't supposed to be a theatre.

Twats on Twatter

Well, where else would you expect to find them? VV doesn't cover himself with glory1, but I think Naomi Oreskes best exemplifies the worst, with "#Kavenaugh claims EPA didn't know about CO2 & climate when #CAA passed. Technically true: EPA did not yet exist!!! But it's precursor, #NAPCA, knew, so did #Congress, #CEQ, #President Nixon & many more".

Whether the Clean Air Act really covers GW is a question4. It certainly isn't a natural fit. The fuss here is over what order things came in, and what you can logically deduce from that. The EPA was founded in 1970, the USAnians Clean Air Act was 1963, and was amended in 1970. Interestingly, also in 1990. Wiki says of the 1990 change that "Further amendments were made in 1990 to address the problems of acid rain, ozone depletion, and toxic air pollution", but it didn't mention GW or CO2 AFAIK. So I think that arguing about 1970, or 1963, is rather besides the point. That the 1990 amendments didn't mention CO2 is rather more significant. As to who knew what when, I refer you to In the decade that ran from 1979 to 1989, we had an excellent opportunity to solve the climate crisis?

Update: Kamala Harris runs Oreskes a close second, and maybe edges in front, with the blatant lie "Kavanaugh couldn't be more clear: He doesn't believe that Roe v. Wade is settled law and he would be the 5th vote to overturn it."

Is he qualified?

Rather fading at the end of this post, and reflecting the lack of debate around this particular point: is BK qualified to join the Supremes? The answer is Yes5, of course, which is why the Democrats aren't very interested in the question; and after a certain amount of theatre will be duly passed.


Just Asking - DBx.
* SCOTUS-pocus
Judge Kavanaugh’s record in national-security cases - SCOTUSblog.
Will Kavanaugh’s Confirmation Hearings Provide Any Useful Information?
Brett Kavanaugh and the Democrats got what they came for - CNN.
Untrusted news increases the importance of affiliative groups - TF.
Unpacking Peggy McIntosh’s Knapsack.


1. The section headline, of course, doesn't apply to VV.
2. TF pushes a different take on political divisions. I'm sympathetic, but not fully convinced.
3. As the NYer writesLindsey Graham, a Republican of South Carolina. “To my friends on the other side: you can’t lose the election and pick judges,” he said. “If you want to pick judges, you better win.” 
4. But not necessarily a terribly important one. We've already had the recent Alsup case decided against the cities.
5. For example, the WaPo looked at his record. They didn't like it, as you'd expect, but they found that his judicial record is significantly more conservative than that of almost every other judge on the D.C. Circuit. That doesn’t mean that he’d be the most conservative justice on the Supreme Court, but it strongly suggests that he is no judicial moderate. 6. My apologies to anyone reading this post during the period in which BK was ginormous. This was due to wiki resizing his picture. All fixed now.


Arthur said...

You are becoming rather drearily contrarian, aren’t you? The big issue here is that senate confirmation used to require 60 votes which, unless the senate was politically lopsided, meant picking a nominee who was viewed as acceptable by all sides - and typically Supreme Court picks have been supported by 90+ of the 100 senators. The Republicans now decided that 51 votes is fine and went with that for Gorsuch and now feel no compunction about picking somebody Democrats will hate. Merrick Garland, on the other hand, was actually recommended by Hatch (a Republican) before Obama picked him. There are real differences between a judge who sides with big corporations and Republican causes in all cases, and one who seems to really be impartial as they are supposed to be. In truth the Republican Party in the US is now behaving more and more like a crime family than a normal party; people are right to be upset about it all.

William Connolley said...

> You are becoming

Sorry about that. But I do still welcome contrary opinions.

> the Republican Party in the US is now behaving more and more like a crime family

I'm doubtful that is a reasonable thing to say.

> senate confirmation used to require 60 votes

A good point, which I should have mentioned. I'm not familiar with this so I shall rely on wiki; tell me if you think it is inaccurate. "The ability to block a measure through extended debate was an inadvertent side effect of an 1806 rule change, and was infrequently used during much of the 19th and 20th centuries. In 1970, the Senate adopted a "two-track" procedure to prevent filibusters from stopping all other Senate business. The minority then felt politically safer in threatening filibusters more regularly, which became normalized over time to the point that 60 votes are now required to end debate on nearly every controversial legislative item" sounds important, if we care about reasons and precedent.

But the main bit you're glossing over is the 2013 change: "On November 21, 2013, the Senate used the so-called "nuclear option," voting 52–48 — with all Republicans and three Democrats opposed — to eliminate the use of the filibuster on executive branch nominees and judicial nominees, except to the Supreme Court". So the Democrats lead the way, based on having a majority at that time. So you may not like the Repubs "on April 6, 2017, the Senate eliminated the sole remaining exception to the 2013 change by invoking the "nuclear option" for Supreme Court nominees".

Are you familiar with the irony in this case? As the NYT wrote at the time: "Furious Republicans accused Democrats of a power grab, warning them that they would deeply regret their action if they lost control of the Senate next year and the White House in years to come."

Arthur said...

Oh very familiar - unfortunately I live in this country. But it’s not irony - Republicans started abusing the filibuster as soon as Obama was elected; the first year or so it wasn’t a problem because there were actually 60 democratic senators to get things through, but after that the obstruction was truly unprecedented. Do you know why Trump has been able to appoint so many more federal judges in his short tenure so far? Because Republicans blocked Obama’s appointments so consistently - by filibuster and also via the “blue slip” rule which they have now also abandoned as they are in control now. There is not a “two sides” even-handed story here - one side has been abusing old norms and procedures to try to obtain total control, while the other side has been very even-handed, bending over backwards to try to be reasonable. As to the “crime family” angle - literally 3 R congressmen were indicted in the past few weeks; two former R speakers and one present congressman have been parties to child sex abuse, and every one of them seems to act as if the Russians or party leaders have some sort of blackmail hold over them. This is not a healthy political party any more.

JCH said...

To most reasonable people there is a difference between district court judges, appellate court judges, and Supreme Court judges. Having Supreme Court judges approved on a simple majority is fraught with significant national risk. It's lifetime, and it is astoundingly reckless. Those 9 judges are the most powerful people in the country. The Democrats did not change the rule for a Supreme Court nominee; they changed it for lower court judges, on whom there are significant checks and balances. In the old world, a President could buy, if necessary, the votes to get to 60. That is increasingly more difficult to do. But basically they nominated moderates. This guy is pretty radical. Ultimately Scalia is going to get what he wanted, and I don't think Republicans are going to like how that is going to come out. Back in the day, when people could not get justice in conservative courts, they amended the constitution. Been awhile. That went away because courts started to use commonsense. Commonsense, badly battered over the last 40 years, is about to be murdered.

CapitalistImperialistPig said...

There is newly released evidence that Kavanaugh perjured himself in his original appointment hearings. I tend to consider that disqualifying.

William Connolley said...

> consider that disqualifying

But is that in any sense an independent judgement? They are so hard to find nowadays. Are you suggesting that you were entirely neutral until this new information came out? I'm rather dubious.

I don't know how "newly" you're talking about. My guess is the kind of stuff in The Brett Kavanaugh perjury controversy, explained by 4 legal scholars.
Conclusion? It’s probably not perjury
at Vox.

William Connolley said...

And the answer to the obvious "if it's obviously perjury, why aren't you suing him?" is This is why we just filed a criminal complaint against Brett Kavanaugh. Are they serious, or is this just a stunt, so that they can say "yes of course we believe he committed perjury, look we filed a complaint"? Time will tell.

Chase Stoudt said...

It was the dog whistles conflating abortion and birth control that did it for us. Alaska is one of the few states where privacy is protected under the constitution and our state supremes have cited this clause when ruling on “a woman’s fundamental right to reproductive choice."

This state is weird politically, you’re only two degrees removed from someone who has national significance.

William Connolley said...

That brings up something that isn't often said, esp in RvW: that in that case, and some others, the Supremes are striking down state laws, they aren't actually making laws themselves (or, put another way, they are acting in an anti-majoritarian way, as the founders intended them to). So if you have a state constitution that does this for you already, then you don't have a problem.

Anonymous said...

I must agree with Arthur.

The Rs have switched the game to heads we win, tails you lose.

Sen. Graham says if the Ds want to appoint judges, they need to win the election.

But the Rs denied Obama who was elected any vote at all on his nominee, Merrick Garland. Despite Sen. Orrin Hatch stating not long before then that if only Obama would appoint a solid centrist jurist like Merrick Garland, of course he would sail through as acceptable to the Rs, but he said he knew he would not, and would appoint some far leftist jurist. He did nominate Garland, and they simply refused their non-optional COTUS-prescribed advice and consent duty (or optional disapproval, via a vote after hearings).

Then the late and nearly beatified supposed avatar of bipartisanship, Sen. John McCain, said that if Hillary Clinton were elected, the Rs would block any of her appointees.

October 2016, as reported here at NPR, https://www.npr.org/2016/10/17/498328520/sen-mccain-says-republicans-will-block-all-court-nominations-if-clinton-wins.

And he was supposedly one of the good ones? The R party has decided to use thug tactics, ever since Speaker Gingrich turned to extortion tactics in the '90s. No abuse of norms is beyond them.

I attribute William's position to perhaps ignoring politics.

Senators Diane Feinstein, Pat Leahy, Dick Durbin and Sheldon Whitehouse are not bomb-throwers or careless with their words. All have said Kavanaugh has lied in his sworn testimony.

Kavanaugh is very well qualified, but also, multiply disqualified, for a life tenure on the high court.


William Connolley said...

Refusing through a full presidency does seem extreme; and it clearly wasn't Repub policy.

> game to heads we win, tails you lose

It isn't a game, of course. But in politics, if you've managed to do that, then that's a success. If you find yourself accusing your opponents of that, it's because you've lost. The Repubs have also lost something in the process, which is hopes of bipartisanship, but that wasn't looking too good anyway. So I think they'll regard that as a trade worth making. I'm tempted to say that, nonetheless, it was rather unsporting of them. But if I did that you'd accuse me of "ignoring politics", so I won't.

> need to win the election. But the Rs denied Obama who was elected

You have confused two different elections, I think for rhetorical purposes, as you're fully aware of the differences. The elections the Dems needed to win were senate / congress.

> multiply disqualified

I don't really buy that. I think that you've decided the result you want, and will evaluate candidates based on that. Certainly, the ABA disagrees with you.

CapitalistImperialistPig said...

I'm not sure that staying just North of convictable perjury is an adequate standard for a Supreme Court Justice.

William Connolley said...

I agree; it would not be. But where will you find someone impartial to judge whether he is or not? Above, you dodged whether you consider yourself independent / neutral or not; I'm guessing you are honest enough to admit that you aren't.

How much of this is post-hoc construction of obstacles? If the perjury problem were taken away, would you accept him as meeting the adequate standards?

Chase Stoudt said...

“the Supremes are striking down state laws, they aren't actually making laws themselves (or, put another way, they are acting in an anti-majoritarian way, as the founders intended them to).”

My better half is from Iowa, they’re teed up for the Supreme Court. If it wasn’t a blatant push for power they wouldn’t be pushing this issue. We’re just trying for one and it almost killed her the second time around.

Anonymous said...

The ABA assessment that he is well qualified is the result of a lengthy process, involving hundreds of ABA members' solicited input (as described in detail at their website). It was completed before this newer evidence became available (his past document trail that has been newly revealed, and his sworn testimony concerning it when queried).

The ABA does not disagree with me that he is disqualified. They have expressed no opinion on it, because it only came to light after their review and reported grade based on that review.

When former Deputy Director of the FBI Andrew McCabe was reported by the DOJ's Inspector General to have been 'less than candid' and 'misleading' to investigators' questioning, that was considered a firing offense and he was fired, even though he had corrected any such statements himself in the following time.

McCabe was referred to the DOJ for a criminal investigation to determine whether perjury charges should be brought by indictment, and there is now a grand jury convened doing exactly that. Not because he definitely committed that crime (that is to be determined), but because there is reasonable suspicion that he may have.

The FBI has very high standards for its officials, as it rightly should. It is the top federal law enforcement agency. The SCOTUS is the highest court, and should also have very high standards for its candidates.

There is reasonable suspicion and a prima facia case that Kavanaugh may have committed multiple perjuries. (Not just in these hearings, but in his original hearings to be confirmed on the federal bench. That past testimony may be old enough for the statute of limitations to bar prosecution, but he re-confirmed his older testimony, which restarts the clock.)

It should be be determined whether he has, prior to confirming him to this life tenure, under such a shadow of potential criminal acts. If the inquiry is not done now, postponing his confirmation vote until it is complete, he may be rightfully subject to an impeachment inquiry.

This will create a crisis of perceived legitimacy for any 5-4 SCOTUS decision his added vote in the majority creates. Especially since his jurisprudential philosophy is so far out of the mainstream that he disagrees with the 8-0 Nixon and 9-0 Clinton SCOTUS decisions. He has extreme views on the president's immunity from legal processes.