Commentary on Kavanaugh


Staff Reports



I Grew Up in the Segregated South. For Me, Supreme Court Rulings Are Personal.

I fear a return to a time when our rights were considered secondary, if at all.

By Yolanda Parker | August 6, 2018

Supreme Court nominee Brett Kavanaugh has a history of interpreting the law in a way that serves the interests of the powerful over equality and justice.

Having grown up in the segregated South, I’m acutely aware of what’s at stake. I’m gravely concerned for what Kavanaugh’s influence could mean for communities of color, women, the LGBTQ community, and others who’ve fought to advance civil rights in our country.

For me, this is personal.

I grew up as an Air Force brat. We were stationed in the South in the 1950s, when racial discrimination was deeply pervasive. Children weren’t protected from discrimination — not even the daughter, like me, of an Air Force officer who spent a career serving his country. Despite being in a military family, I still had to attend segregated schools outside the Air Force base.

When we were stationed in Biloxi, Mississippi, girls in my junior high school weren’t allowed to take science classes — only home economics. My parents had to get special permission for me to take science. And each weekend there were civil rights demonstrations, where bigoted counter-protesters would sometimes leave adults and my classmates bloodied and bruised.

Through relentless struggle, the decades-long civil rights movement earned African Americans and other marginalized communities stronger voting rights, de-segregated schools and cultural establishments, equal employment, fairer housing, and more.

Protests gave way to judicial cases, giving us landmark decisions like Brown v. Board of Education and Roe v. Wade that legalized protections for our personal freedoms. More recent cases like 2015’s Obergefell v. Hodges advanced civil rights to LGBTQ communities.

It’s thanks to those hard-earned wins that systemic racial segregation has been outlawed, access to safe, legal abortion has been legalized, and same-sex couples have the legal right to marry.

But we’ve all seen and felt the toxic backlash to that progress since Donald Trump was elected.

The president has dehumanized immigrants and other Latino communities by calling them rapists and animals. And last August, after the deadly white nationalist rally in Charlottesville, Virginia, he claimed there were “very fine people” on both sides.

Not only is he normalizing racial hostility and small-mindedness, he’s re-institutionalizing it by adding far-right extremists to his administration and to our courts. And now that Trump has nominated yet another ideologue to the Supreme Court, those rights we fought so hard for are seriously endangered.

My experience as a young woman in Mississippi gives me intimate firsthand knowledge of what’s at risk if that fuel is added to an already growing fire. Today, we are perilously close to reviving an openly racist, hostile, and xenophobic world for people like me and many others.

I hung my Biloxi Junior High School diploma alongside my other diplomas to remind me of what we’ve all overcome — and how much we have to lose. And every day, when I see it, I’m instantly transported back to that frighteningly dangerous time.

If we allow yet another far-right extremist to our nation’s highest court, I fear another backlash is on the horizon — a return to a time when our rights were considered secondary, if at all. I know I’m not the only one who can’t let that happen.

The Supreme Court is the final judicial arbiter of fairness in our system. Personally, I’ll be giving every ounce of energy and grit I have to fight Brett Kavanaugh’s confirmation to that court. And I hope other Americans who believe in equality and justice for all will take it personally, too.

Yolanda “Cookie” Parker was the Founder and President of KMS Software Company and is a board member of People For the American Way. Distributed by OtherWords.org.

Opinion: Will Federalist Papers Shed Light on Judge Kavanaugh? Or Vice Versa?

By James P. Freeman

InsideSources.com

Like an approaching summer squall over the placid horizon, the confirmation hearings in the U.S. Senate loom large for Judge Brett Kavanaugh’s Supreme Court nomination. As a spirited dialogue — debate? — will likely envelop the Judiciary Committee’s public evaluation of his background and qualifications, Americans are likely to hear about competing theories of constitutional interpretation. There may be references to “original meaning,” “textualist” and “living tradition,” among others. But if everyday Americans are lucky they will also hear references to “The Federalist Papers.”

The Federalist Papers are a series of 85 essays arguing in support of the U.S. Constitution, and how the then-new government would function.

At the time of publication, however, they were written under the pseudonym of “Publius,” an homage to Publius Valerius Publicola, who was instrumental in the founding of the Roman Empire. The identities of its authors were revealed later to be Alexander Hamilton (the main force behind the project; later the first treasury secretary), John Jay (the first chief justice of the United States), and James Madison (the fourth president; traditionally afforded the accolade “Father of the Constitution”).

Arguably, the collection constitutes the most influential columns in American journalism.

The Federalist Papers act as a kind of liner notes to America’s foundational principles. As the Library of Congress more precisely says, the essays are considered “one of the most important sources for interpreting and understanding the original intent of the Constitution.” Accordingly, they are particularly relevant to all federal jurists. Especially those texts specifically relating to the judiciary.

On June 21, 1788, the Constitution became the official governing document of the United States of America when New Hampshire became the ninth of 13 states to ratify it. But even then the Constitution was evolving. Madison later introduced 19 amendments to the Constitution. Ten of them, known as The Bill of Rights — which list specific prohibitions on governmental power — were ratified in December 1791.

The Federalist Papers leave a lasting legacy in development of modern western political thought.

Notably, throughout American history, the Supreme Court has incorporated The Federalist (the original name of the essays) into many of its opinions. A fact Kavanaugh surely knows.

Six essays (Federalist No. 78 to Federalist No. 83 deal directly with the judiciary. Each was written by Hamilton. And a number of them are germane to the American condition in 2018.

They may shed light on Kavanaugh. And vice versa.

“Federalist 78” opens the judiciary debate with this salvo: “Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.”

Hamilton reasons that the executive branch “holds the sword of the community” whereas the legislature “commands the purse.” The judiciary, “on the contrary, has no influence over either the sword or the purse.” Hamilton also thought then that the judiciary “the weakest of the three departments of power.” It would be fascinating to learn if Kavanaugh concurs with Hamilton.

In “Federalist 80” Hamilton reviews the particular powers of the federal judiciary. “It appears,” he writes, that these powers “are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system.” But Hamilton also understood that the system of checks and balances in the new government was not flawless. Far from it.

Should, what he called “partial inconveniences” appear in the judiciary, the prescribed remedies “ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.” But such remedies may need a remedy today.

Considering today’s vast administrative state, where federal bureaucracies rule with few checks and balances, and Congress having delegated broad swaths of authority, Kavanaugh’s views on this issue would be timely and highly informative.

Where does Kavanaugh stand on these and other matters relating to the role of the judiciary as articulated in The Federalist Papers?

Law professor Eric Posner of the University of Chicago wrote recently that Kavanaugh has cited The Federalist Papers in his opinions “a few times.” But beyond that not much is known about his core judicial philosophy.

Some speculation about that may have been quieted by the judge’s remarks given at a 2011 George Washington University Roundtable. “The point being,” Kavanaugh said, “be careful about even ‘The Federalist,’ I’d say, point of view. That’s not the authoritative interpretation of the words. You’ve got to be careful about some of the ratification debates. You’ve got to be careful about different people at the convention itself. They had different views. … So when there’s compromise, all the more reason for me to stick as close as you can to what the text says.”

Senators may consider those thoughts as they contemplate the coming hearings.

ABOUT THE WRITER

James P. Freeman is a former columnist with The New Boston Post and The Cape Cod Times. He wrote this for InsideSources.com.

Opinion: Kavanaugh Deserves a Quick Hearing and a Favorable Vote

By Matthew R.A. Heiman

InsideSources.com

Senator Chuck Grassley, chair of the Senate Judiciary Committee, has pledged to hold open, fair and thorough hearings to consider the nomination of Judge Brett Kavanaugh to the Supreme Court. Unfortunately, opponents of Judge Kavanaugh have taken this good-faith approach as an opportunity to seek documents that have little connection to the judge’s qualifications. As a result, Grassley expects hearings to occur in September and a Senate vote in October.

The primary reason for the delay is the Senate Democrats’ demands to see every piece of paper Kavanaugh has ever touched while a federal employee, something he has been for 25 out of the last 28 years. It’s a long paper trail. He has served as a federal judge on the D.C. Circuit Court of Appeals for the last 12 years. Before that, he served as a White House counsel and staff secretary to President George W. Bush.

As the staff secretary, his job was to coordinate the flow of paper from government departments and agencies to the president’s desk. For the most part, he was not the author of these documents, he was the person making sure they were seen and acted upon by the president. But, his opponents are anxious to get them — all 1 million pages.

Why look at documents that offer limited to no insights on Kavanaugh’s fitness to join the Supreme Court? Because his opponents are struggling to find a good reason to object to his fitness for the job. Look at his track record. He took undergraduate and law degrees from Yale. He clerked for prominent federal court judges, including retired Justice Anthony Kennedy. He spent time at the Solicitor General’s Office of the Department of Justice. He was an associate counsel for Ken Starr’s Whitewater Investigation.

His opinions have influenced decisions by the Supreme Court and federal courts around the country. His law clerks have gone on to clerk for Supreme Court justices. There are no question marks around his qualifications and no holes in his background.

Thus far, it appears there are two objections to Kavanaugh. First, he takes a textualist approach when applying the Constitution and statutes to the cases that come before him. Second, he bought baseball tickets with a credit card.

The first objection is wrong-headed. Taking the text of the law seriously is exactly what a good judge does. A judge should never substitute his or her views for the law as it is written in the Constitution or the statutes. To do otherwise upsets the careful balance of power that is distributed among the three branches of government. As we learned in civics class, Congress (not the courts) makes the law, the executive executes the law, and the courts apply the law.

The second objection of having a fondness for baseball is silliness on stilts. Kavanaugh’s appreciation for America’s pastime is further evidence of his fitness for the highest court.

There’s an old saw among lawyers that goes like this: When the law is on your side, argue the law; when the facts are on your side, argue the facts; when neither is on your side, just argue. Kavanaugh’s opponents seem to be following the “just argue” approach, but there isn’t much logic to it.

Kavanaugh is an outstanding judge who is held in high regard by his peers. He possesses impeccable credentials, and he has led a life of integrity in both the professional and personal spheres. Those are the factors senators should consider in deciding whether to vote for or against Kavanaugh. Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor received between 63 and 96 votes in favor of their nominations. Kavanaugh deserves the same, strong bipartisan support. Tell your senators to get on with it.

ABOUT THE WRITER

Matthew R.A. Heiman is a visiting fellow at the National Security Institute at George Mason University’s Antonin Scalia School of Law. He wrote this for InsideSources.com.

Opinion: The Problems With Democrats’ Paper Chase

By James P. Freeman

InsideSources.com

Sen. John Cornyn, R-Texas, described it this way: “Well, you might call this the great paper chase.” The senator was not referencing the 1971 novel or the 1973 movie or the 1978-79 television series all named “The Paper Chase.” Instead, he was referring to the process of retrieving the massive paper trail left by Judge Brett Kavanaugh.

Public hearings for Kavanaugh will begin September 4, (the day after Labor Day), and Senate Democrats insist that the judge’s entire catalog of written work — like going back to the vaults to recover all of The Rolling Stones original recordings on tape since 1962 — be made available to them before a vote is made in the full Senate on his Supreme Court nomination. Democrats aim to delay any vote until after the midterm elections holding out hope that they may retake the Senate. (Republicans now control the chamber with 51 members; no date is set for the Senate vote.)

However, recalcitrant Republicans counter that determined Democrats are behaving like paper wasps, gathering dead wood not to build a nest of objective information, but, rather, to build a rickety narrative about Kavanaugh in order to defeat his placement on the high court. Save for hope, Democrats — notwithstanding the coming public hearings — are using a bold new tactic to spur the vetting process in their favor. And it’s a long shot.

They actually filed several FOIA requests.

FOIA stands for “Freedom of Information Act” and became federal law in 1967. The act, reads foia.gov, “has provided the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government.” There are more than 100 agencies subject to FOIA requests. Last year, according to the Office of Information Policy of the Department of Justice, government agencies received more than 820,000 requests.

The Hill reports that Democrats submitted requests to the CIA, the National Archives, the Department of Justice and the Department of Homeland Security for documents “tied to Kavanaugh’s three-year period as staff secretary for President George W. Bush.” Democrat petitioners have also asked for an expedited response given the enormity of the paperwork sought.

It is estimated that these documents could be in excess of 1 million pages, notes USA Today. By comparison, senators had far fewer records to review under two past justices to be confirmed to the high court (182,000 pages of documents on Neil Gorsuch and about 170,000 pages on Elena Kagan). More documents will be produced about Kavanaugh than any other nominee in history, said Senate Judiciary Committee Chairman Chuck Grassley of Iowa.

Judiciary member Sen. Richard Blumenthal, D-Connecticut, openly called the FOIA requests an “extraordinary step,” “unprecedented,” and a “last resort.” The senator also believes that this action has never been done with regard to a Supreme Court nominee. Blumenthal told MSNBC’s Rachel Maddow that Senate Republicans are “hiding” and “concealing” Kavanaugh documents.

But as Gabby Morrongiello wrote in The Washington Examiner, “Normally, records from Kavanaugh’s time in the White House would be protected by the Presidential Records Act, which allows former presidents to keep their White House files secret for up to 12 years after leaving office.” President Bush left office in January 2009.

The National Archives is indeed screening nearly 1 million of these pages to ensure none of the material is subject to executive privilege under the act. “It says,” reports npr.com, that the review “will not be completed until the end of October.” As a consequence, Senate Republicans have moved to obtain documents directly from Bush’s legal team in order to expedite the process.

Republicans, meanwhile, argue that all this Democratic bluster is merely political stagecraft.

They recall that during Kavanaugh’s 2006 nomination as a judge to the U.S. Circuit Court of Appeals, Democrats then never demanded such a ferocious examination of his paperwork related to his White House work. Last week, Grassley released nearly 5,800 pages of documents from Kavanaugh’s tenure as associate White House counsel to Bush. Already, the Judiciary Committee has received more than 125,000 pages of these documents. And the committee is expected to release substantially more documents in the coming weeks.

Finally, Republicans say — professing mock horror — that Democrats are also acting disingenuously. They contend that Senate Democrats announced their opposition to Kavanaugh immediately after his nomination, without regard for the need for extensive review of documentation before such opposition.

In an op-ed for The Wall Street Journal, Grassley comments, “It stands to reason that Senator Schumer wasn’t too concerned about Judge Kavanaugh’s record before he announced his opposition. Why is it so important to Senator Schumer now?”

Further, with regard to documents already in the public domain, “How much more do Democratic leaders need to know when they’re already voting no?”

After the final vote on the judge by the full Senate, it would be understandable if Kavanaugh acted as the character Hart did at the end of “The Paper Chase” novel: Where the finally tally of grading was pitched off in a form of a paper airplane — a metaphor, perhaps, of a scoring and vetting system that should be thrown out.

The judge will have many papers from which to build his aircraft.

ABOUT THE WRITER

James P. Freeman is a former columnist with The New Boston Post and The Cape Cod Times. He wrote this for InsideSources.com.

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Staff Reports