SCOTUS Watch

On September 27, 2018, Dr. Ford testified about Brett Kavanaugh sexually assaulting her as a teenager. Other allegations were made, including one that recently was reported via a new book involving him thrusting his penis at a woman in college.  A major issue here was the limited nature of both the FBI investigation and hearing set up to directly address this issue. For instance, Sen. Harris' recent call for a House investigation flagged the FBI issue.  With so much to cover, this should not be overlooked.  Both senators and executive officials violated their constitutional oath here. The sham she said/he ranted here was a travesty. 

Both were blatant deficiencies in the confirmation process for a key justice (or any justice for that matter).  We apparently can't do this right even at this stage.  Kavanaugh's ranting was so bad it led previous supporters such as John Paul Stevens to publicly state he should not be on the Court.  This was apparent to many of us even beforehand and statements in his direct testimony that at the very best were misleading has been raised as possible impeachment material. One can imagine the anger many women (including reporters and law professors) have here. It is so bad that questions regarding financial issues (baseball tickets and the like) are something of an also ran though that too should be covered. The whole Kennedy's son back in the day (over ten years ago) involved in Trump banking to me is not a thing though can see why is appears bad.  So fully report that.

There were various options for this key seat.  I favored Judge Amy Coney-Barrett from the short list though she is said to be the RBG seat option as well as coming off as too professor-like for Trump.  Also saw a bit where her mild remarks on judicial independence might sell wrong. Kavanaugh has a history of being a Republican flunky, so I can see why people liked him. His judicial record is standard though he has a sort of tic akin to Kennedy in a fashion to want to explain how fair he really is. And, no the opposition was not just because of Trump.  Gorsuch's seat was stolen, but other than being an asshole, he was opposed based on his record (and that whole seat thing).  A year later with the first full term of Trump coming up, we should not forget.

Investigations must continue.  (Yes, the video that came up when doing a Youtube search to insert a video has a Sanders thing.)

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial

It was suggested (unclear how true it is) that if there was a private ballot that twenty or more Republicans (if all Democrats joined in, that would be removal)  would vote to remove Trump in an impeachment trial. The Constitution says that one fifth of those present in each house can call for a recorded vote on any question.  But, on something of this magnitude (as compared to some lower court nominee), a recorded vote would be deemed necessary.  I guess after Merrick Garland and so on, we need to say old rules are flexible (let's call it the "Moscow Mitch" Rule), but  doubtful a secret vote would be deemed appropriate. Also, some true believers would likely challenge it via that 1/5 rule.  I'm game to test this with an actual trial.

The basic point here is that there are explicit provisions in the Constitution that furthers public government, but it also is a matter of norms.  The Bill of Rights explicitly says criminal trials are public for the benefit of the accused, which in a narrow sense might be interpreted to mean they could waive it.  But, public trials are protected basically as a public service, the various interests suggested in the various opinions when the right of public access to criminal trials was protected with even the Ninth Amendment popping up.  Not just for the media [serving as their agents in theory] but for the public at large.

The interest of public access applies to court of appeals as well and the Supreme Court has slowly come to recognize the full possibilities here. Back in the 1990s, I could only obtain even Supreme Court opinions from a few libraries, and then in bound copies.  Now, even lower court opinions from back in the day (if not all of them) can be accessed online.  I first listened to excerpts of a few arguments via Peter Irons' collections, first on audio tapes.  Now, oral arguments (if not opinion announcements) are accessible at the Supreme Court's own website.  And, we have Twitter, which added to my ongoing 2019 execution series. 

The House Judiciary Committee, sort of lost in the news, had a hearing on public access to the courts.  Appropriately, we have not only video online but access to the written testimony of multiple witnesses.  For example, the Chief Justice of the Michigan Supreme Court (and sister of a West Wing actress) submitted a letter strongly supporting access, including video. And, along with the Brits (as seen in the big Brexit litigation) and Canada (and probably other nations), many state supreme courts have video.  Noting some possible concern with certain trials (if the defendants were present), such courts provide clear evidence that video works okay.  Their judges aren't just on video to promote books.

One person now in entertainment television noted that past experience in the legal field (including in a same sex marriage case) gave special insights to the value of full access.  This includes video helping to advance trust in the system.  At least one legal reporter argued that a right to public trial in the 21st Century clearly involves audio and video.  I would add my usual bit on the value of including opinion announcements and video of other non-oral argument material to educate the public on what the courts do.  Concern for things like playing to the camera -- is that a problem where cameras exist? -- seems overblown, especially with so many oral arguments done by veterans who would have some strong incentive not to antagonize. Plus, some of that already has occurred, though often by the justices.

The issue of judicial ethics (including the now optional rules for justices) is quite important for the public respect of the courts.  The handling of the Garland nomination and the clusterfuck of the Kavanaugh nomination (rightly) taints the institution.  I'm not ready to move on in that regard. The concern here was public access.  With direct public access only available as a whole for a few minutes, video and audio is key.  As are transcripts and the PACER system was discussed there as well.  I have seen some concern for the fees (now the general public has $15 per quarter fee waived; that will be doubled -- that would cover looking a few cases, depending on the page count).

Did not watch the hearing but one final thing I would cover is that the Supreme Court probably can improve public access to their own website. It has some good things, including the docket search function, which provides access to various briefs.  (SCOTUSBlog case pages are very helpful here as well, providing a link to the opinion below.)   There is also a phone number to find out if an opinion day is likely (though they don't ahead of time actually tell you what opinions, sort of a cliffhanger).  But, I think easier access can be provided (clearer "case pages" ala Oyez or SCOTUSBlog can serve as a model).  Also, more material on the Supreme Court such as a basic twenty minute video or visual look at the Supreme Court itself could be provided.

Certain justices in particular are concerned with educating the public with Justice Sotomayor a leading voice there (with special attention to children).  Justice Souter also has bemoaned the lack of civics education (I never had a civics class in school).  Lower courts have done a variety of things to help educate the public.  The Supreme Court can as well.

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The First Monday in October opening of the '18 term is approaching and the "long conference" is scheduled tomorrow to deal with the outstanding cases.  The first full term (the Dr. Ford sham hearing pushing Kavanaugh's confirmation back a bit) with two Trump justices will then begin next week.  It is a moment of shame and time for righteous anger.