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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, September 24, 2018

Kavanaugh and the Duties of the Nomination Process

Update: On Thursday, we had the special hearing with Kavanaugh's accuser (with a woman prosecutor standing in for the Republicans though from my understanding at times they stepped in and she popped up later too) providing a very emotional and convincing account and then Kavanaugh came, providing a very emotional, unhinged (strong partisan attacks on Democrats for 'Borking') and unconvincing denials.   

As argued below, contra to the view of various supporters, this isn't a criminal trial with a burden of proof favoring the "defendant." The hearing also was a sham in that no other witnesses were called. (cf. the Thomas-Anita Hill hearing).  Nor, were the other allegations probed or witnesses or even witness statements officially submitted or handled.  Kavanaugh failed on any number of grounds. He did already.  His testimony made things worse for him, including as a neutral arbitrator. Except maybe for the votes that counted. Well, Trump liked it.  

On Friday, the next day, the vote to advance it out of committee was held. Obviously, it is absurd to do so immediately. The result was an unsurprising party-line vote with drama:  the vote was delayed for ten minutes as a Flake proposed "deal" was discussed.  Basically, it is an up in the air thing: he said that he'd vote to advance but did not want to vote on the floor for about a week so the FBI can investigate. Requiring other parties, the implication being a few Republicans (notably the likes of Collins) are on his side, including Trump, this thing is up in the air for now.  It also was suggested a very emotional encounter with two victims in the elevator influenced Flake.

The twisted soap opera continues


As the details of a possible Senate hearing this Thursday to deal with an allegation of attempted rape when the putative replacement of the swing vote of the Supreme Court continue, more allegations are developing. The #MeToo movement has reached the Supreme Court (again) and we have a new hashtag on #IDidntReport.  Already, and hopefully after he is forced to resign his nomination (which is far from a lock even now), this has pay some dividends. Some sort of justice and inability to silence and tar accusers is in place and will be later on. Not enough.  Justice comes slowly.

(This is why even replacing Kavanaugh with some similar conservative matters. He is particularly bad and forcing him out shows a limit. It also shows why the handling this well goes beyond him. It is a matter of handling things that will come up again and doing so half-way well.)

The mistreatment of the Kavanaugh Nomination, including rushing things along (not in a vacuum -- looking at raw days, this isn't taking long in comparison, but level of documentation that had to be processed alone required more time), is a warning sign. It also provides, as each confirmation and moment of major note, a sort of learning experience. Constitutional developments don't just occur in the courts. The proper handling of nominations and confirmations in general as I tried to argue in this thread  often is a matter of the political process in action.

This doesn't mean they aren't "constitutional" as Justice Kennedy ironically repeatedly said, including in his last appeal from the bench in a separate opinion in the travel ban case. Lame as it might have been in that case, there is something to his argument. In some other case, the courts might have less call or ability to be involved and to provide strong restraint. The Constitution is not in abeyance then. As Kennedy argued:
Indeed, the very  fact  that  an  official  may  have  broad  discretion,  discretion  free  from  judicial  scrutiny,  makes  it  all  the  more  imperative  for  him  or  her  to  adhere  to  the  Constitution and to its meaning and its promise.
Again, this might sound like pablum, but realistically and as a matter of good practice, we cannot merely rely on judges. State and federal officials, down to postal employees and notaries, swear or affirm to uphold the U.S. Constitution.  Their judgment alone often is what matters and needs to be developed in various ways, including moral restraint.  These things should be kept in mind when we look on during the Kavanaugh approval process. On the standard to use there, Prof. Kate Shaw (who happens to be Chris Hayes' wife) had a good op-ed recently that can very well in some other case limit a Democratic President. And, it surely did somehow.
So what standard should the Senate use in evaluating the claims made by Dr. Blasey and in deciding how they bear on Judge Kavanaugh’s fitness for a seat on the Supreme Court? The Senate’s approach to its constitutional “advice and consent” obligation has always depended on context. A number of factors matter: the timing of the vacancy; the justice being replaced; the nominee’s likely impact on the ideological makeup of the court; even the popularity of the president (very popular presidents have always had more leeway when it comes to picking justices). Then, of course, there’s the nominee.
She appealed in part to history:
But in each case, a constellation of considerations, both political and constitutional, operated to defeat nominations of individuals who were certainly qualified, by conventional metrics, to sit on the Supreme Court.
She concluded:
This context-dependent approach arguably leads to the conclusion that the existence of credible allegations against Judge Kavanaugh should be disqualifying, especially if further corroborating evidence emerges. That’s true even if the evidence wouldn’t support a criminal conviction or even civil liability.
As it continues to emerge. A basic part of this is that this isn't a court of law or even a simple job interview. It is a seat, a key seat at that, to the U.S. Supreme Court. These things all have to be taken into consideration:
Putting Judge Kavanaugh on the Supreme Court in light of credible allegations against him could raise troublesome questions about the court’s legitimacy. And that’s a genuine problem, both for the court’s ability to function and more broadly for the rule of law.
Such things should be taken into consideration at the nominating stage too. And, it should be now at the advise and consent stage. But, you live by the constitutional political appointment process, you die by it. Thus, politics affects the hard-line approach of the Republicans, even if an alternative will offer similar (if somewhat different in some fashion -- each member of the conservative wing has certain differences than the others) judicial results. Demanding some limit to the usual court nomination bullshit dance is appropriate here, blatantly opening himself to perjury charges. "Defenses" of "just blatantly unethical" help only so much.

This is a political question. By raw power, a senator can flip a coin and the very mix of concerns can be tainted as here.


The issue of a "proposed standard" was raised here  and someone felt it was wrong use phrase things in a legal fashion when it is a political decision. It is fine though to use "burden of proof" in various ways, including cases that are not legal proceedings. It also has a philosophical meaning after all and people use legal terms colloquially.  I also found a good quote in an early Supreme Court case regarding decision-making by justices, which also ultimately is a matter of justices deciding things based on judgment:
[Various opinions on the dispute at issue] incline us strongly to suspect that a great diversity of opinion prevails in that state upon the question we have been examining. However this may be, we hold ourselves answerable to God, our consciences, and our country to decide this question according to the dictates of our best judgment, be the consequences of the decision what they may.
That is, the justices swore an oath and have a duty to determine the law as they deem fit. The power is ultimately theirs. But, it is reasonable to say that "best judgment" is something that can be opined upon, after all "We the People" ultimately are in charge. That is what the author of that post did. He put forth reasonable grounds for others to help determine if senators were using best judgment. And, yes, judges have a responsibility to apply law, but justices ultimately are the final arbitrators.

If they decide based on flimsy grounds, it is not like the law is not binding. There are ways for others to respond, especially if the judges don't act in a convincing fashion. In both cases, they are "answerable to ... our country." Anyways, more continues to come out including in comparison to the last nominee, who even went to the same high school without being such a sexist asshole.

[Last part added on 9/25 and might add more.  Bullies won in 2016. Will more win this week? First Monday in October is the 1st.]

Unsane aka Lighter Fare For The Times

In between local PBS stations on my FIOS dial (channels 13 and 21) there are a few channels, including Spanish ones and Hampton TV, a low rent looking local station. Late Saturday nights (2AM), an appropriate time (Svengoolie is now on the too early 8PM slot) is Macabre Theater, with a sexy Elvira sort of host. The best approach for both, especially given this one has even more commercials, is to DVR, so you an fast forward. Latest was Unsane (no not that one). It's an old Italian "giallo" flick that is a mix of slasher type killing and boring exposition [somewhat obviously dubbed though the channel seems always to use cheap copies of films in general] mixed with the host's campy bits. Fun late nite fare.

Sunday, September 23, 2018

Film and Mushroom News

An excerpt of the upcoming Stormy Daniels tell-all (bound to be disappointing given the lead-up) referenced a video game mushroom character. Enough said. I actually would be interested in that book if she provides a fairly honest and detailed account of her work in the sex industry. Looking for a book doing that. Meanwhile, caught Til Sex Do Us Part late night and saw two characters (including the lead; these movies suggest a sort of roving ensemble company) from Erotic Obsession, which has a great ending. Some not bad set pieces though the wife doesn't get to have much fun. Husband character again comes off like a jerk.

Football: Some weird stuff, including a Bills blowout over the Vikings. Giants hung on vs. Houston. Pats lost to Detroit by two touchdowns. Key baseball news left is to see if the Rockies can find a way to gain 1.5 games. Time running out, but they have two paths.

Monday, September 17, 2018

Sports Update

The Mets (not quite officially eliminated!) lost the series vs. the Red Sox, but overall gave a good effort though of course the one win was not for DeGrom (who gave up three but his main Cy Young competition had issues of late too). The Yanks didn't gain ground but Tampa stopped the As from either. The Jets in effect gave away the game to Miami without special team/offensive heroics to save the day (20-12). The NYG offense (20-13) was lackluster on Sunday Night Football with ten late garbage time points (the last three after a lackadaisical TD drive; they returned the onside kick but not the next one). Browns played Saints tough but found way to lose late. Another tie (29 all) after one team scored 22 in the 4Q.

ETA: Cards won, so Mets eliminated. Mets then lost, thus was their chance at .500.

Jets: After losing to the Dolphins in a sloppy game, they finished their three games in eleven days run 1-2 by giving the Browns their first win in a long time. Not shocking -- Browns put up a good fight against better opponents thus far and the insertion of their own young phenom late in the First Half injected life to come back (for the second time) from a 14 point defecit. This time, they didn't only get a tie. Still, Jets should be at least 2-1 now. Disappointing.


A new SCOTUS term is rapidly approaching though things continue to happen, including a "because I say so" Saturday order by CJ Roberts and Kavanaugh's accuser outing herself, particularly as the media was about to do so anyway. On that front, it is a mess, but for perhaps somewhat different reasons, Sen. McConnell warned Trump to nominate someone else. I rather this not be the reason to oppose him but along with his prevaricating about Kozinski, there needs to be better responses in this #MeToo era. Overall, people have bad things in their past, though it's better if they are honest about their record. OTOH, this is a SCOTUS nomination, not a criminal trial. Committee vote scheduled later this week.

Update: The full Court has denied a stay (without saying why) thus Roberts' (ditto) stay was vacated. As Election Law blog guy basically expected. Roberts is concerned about the Court's image and people were suspicious of his motives regarding the original stay. More reason to explain oneself. There are so view single orders. Can't they flesh out a bit why they acted?

Saturday, September 15, 2018

Black Klansman

I have not seen the movie but this was a brisk read with an afterword that touches upon recent events (the original came out in 2014). Since David Duke at least is still around, him calling the KKK individuals involved morons should have gone over well for some. There is a certain low heat quality though he did provide important intel, apparently stopped one or more cross burning and a couple KKK members at NORAD was found out. As a police officer he isn't the best to cover it, but interesting question of the limits here on First Amendment grounds. Think his commander was right to worry about public reaction to some extent.

Thursday, September 13, 2018

NY State Primary Day

And Also: It was announced that David Wright will be activated for the final homestand and will play in at least one game. He also said that he does not think he is physically able to fully comeback, but will not officially retire (he has more time left on his contract). I think this was a clear for a long time, but it was an emotional moment to admit it.
There are multiple election days in my district this year given a special election to fill a local seat and separate federal/state primary dates after a federal lawsuit during the Obama years to give military personnel more time to participate.  I am not really sure why any lawsuit would not cover at least state-wide elections, if federal elections are covered. Anyway, to give state officials time to run around the legislative schedule or something, we had a federal election in June and today was the state govenrment primary. The special state assembly race was in April.

There has already been reports of people not listed as on the rolls when they went to vote, even though they might be listed so when they checked online.  Chris Hayes has noted the convoluted nature of NY election rules (the two primaries don't help the reputation) though honestly I myself have never really been stressed out about it.  I don't assume this means things are fine, including more restrictive absentee rules, no early voting etc.  We also only changed from 19th Century lever machines a few years back and do not have receipts to check our votes.

A final bit of weirdness is that today is Thursday. Well, Tuesday conflicts both with the Jewish New Year and 9/11, so for this year only, a special rule was put in place.  It might have been better just to have it next Tuesday, since Tuesday is the normal day to vote, or perhaps have extended voting so that one day doesn't matter so much.  Also, for some reason, they re-arranged things at my polling place, which confused me when I got there.  A couple people, I think they said they were from some media group, asked me outside if I supported Jeff Klein.  Have an idea it is part of the Jeff Klein juggernaut, seen in part by the number of signs around.

I am tired of seeing so many Cuomo ads playing during baseball and then football games, each one phrased as if he was running against Trump. The latest batch talk about "experienced" officials, a dig at the more amateur nature of the challengers (including against former IDC member Jeff Klein and for District Attorney).  The challengers (including Zephyr Teachout, who I think has decent chance of winning) I support also have not had television advertising.  I am not sure that was a good idea.  I fear, like for a local city council race, name recognition can win the day in a close race. At least, wish there were more Alessandra Biaggi signs around. All these Klein signs, a few big ones, are a bit creepy. 

Teachout had a protest campaign against Cuomo that resulted in a respectable, at least for such a non-entity, performance (around 30%) and failed in her bid for a congressional race by nine points.  I think her race for attorney general, especially given her efforts as a reformer (campaign finance particularly), has a good shot given the times. It probably will be a close race and along with Biaggi (after the upset in the local House race, Senator Gillibrand has also gone on her bandwagon) she did get a NYT endorsement.  It is basically a three person race (my feeling is Maloney is a respectable third; am not aware of this Eve person).

The times are depressing though there is some hope for change in November with Alexandria Ocasio-Cortez receiving the most excitement locally.  I am ready to support strong progressive voices against dubious establishment figures or even against people (Tish James for DA seems fine really) somewhat less ideal in that fashion.  Andrew Cuomo on that front is again someone I will vote against in the primary though honestly he is someone who has done some good things.  But, these days, you need to aim higher. I honestly don't see Cynthia Nixon winning, but she has already pushed Cuomo and IDC Democrats too in fact to move left.

I will update this tonight. Again, I voted for governor and lieutenant governor (separate slots), state district attorney and state senate. There were no judges (silly affair, people no one heard of) or local state party officers or whatever on the ballot.  I personally had no issues voting.  Got my sticker.

ETA:  Cuomo's [who won; as we knew he would] choice for Attorney General won a plurality but Teachout was a strong second. A third candidate, however, split the anti-James vote and sealed the deal. The state needs instant run-off voting. But, that's just one of many potential voting reforms it can use.

There was a bright spot, other than the fact that Cuomo did various things to protect his left flank (Cynthia Nixon only received about a 1/3 of the vote, but she clearly concerned him), because Jeff Klein lost.  So, locally, I will have three women (including a more establishment friend assemblywoman) representing my interests. Toss in Sen. Kirsten Gillibrand and perhaps full control of the state legislature, that is not too bad.

(A footnote.  Joseph Crowley actually won the Working Family Party line for the House seat but promised not to run though he refused to consent to work with them to get his name off the ballot totally.  Cynthia Nixon also won there and in theory could get a sliver of the vote.  I question if it would be enough to seriously threaten a chance of the Republican winning.  But, given the bad blood there, it's not a lock she steps aside.)

[9/17 article on the last issue.]

Tuesday, September 11, 2018

NFL Season Begins

While the Mets continue to play pretty good ball (sadly it isn't too satisfying to me), football season began. The Browns didn't lose! (They tied but they did come back vs. the Steelers though they could not finish.) Giants (if vs. a good defensive team) didn't have enough offense. After their new QB had a turnover on the very first play (on Monday Night vs. Detroit), the Jets somehow managed to win 48-17 (it was 17 all early in the Third Quarter). None of the new coaches won. Aaron Rodgers had another "miracle" game after a knee injury.

Wednesday, September 05, 2018

Supreme Myths: Why the Supreme Court Is not a Court and Its Justices are Not Judges

I engage with the author of this book on Twitter and at Dorf on Law and his concerns over the power and lack of openness of the Supreme Court is well taken. But, his reasoning is flawed, particularly since (except for a somewhat exaggerated matter of discretion) other courts have the same criteria he cites (e.g., using policy reasons, not merely text and precedent). And, it's just focused on constitutional matters anyway, and not even a range of criminal justice issues (since courts have more cause to claim special knowledge). Finally, he doesn't even really provide the other side. For instance, Footnote 4 is not even referenced. Ultimately, it is a "court," but we need to understand what that means in practice.

Also: Brown v. Bd. is cited as an exception but it wasn't really at the time. And, I think a good case can be made (especially given practice) abortion rights, e.g., are clearly protected by text too. If one is required for equal protection, so is the other.

Monday, September 03, 2018

Judge Kavanaugh

McCain funeral over, back to same old/same old. After how Garland was treated, putting aside the problems of Trump, I decided that there were still eight justices. I noted in the past that this nomination might not be as illegitimate but rushing thru without proper documentation (even if some belittle the concern) and the statement under oath that Trump conspired in a crime pushed me over the edge. We will soon have seven legitimate justices and this nomination (even beyond his positions) is really pissing me off. If you don't like court packing, what do YOU suggest? Every Democrat on the Senate Judiciary Committee signed a letter regarding delaying the hearings. They should stage a walkout later this week.

ETA: They didn't though they put up somewhat of a fight and had some good moments. I still think a simple walkout moment to underline the illegitimacy would have worked. You now have multiple senators accusing him of perjury. Basic disqualification even if you take it down to "lying." But, we are supposed to just accept it as legitimate?