Tag: Supreme Court Balance

Associate Supreme Court Justice Amy Barrett

The Daily Escape:

Cape Cod pond  with red shack – October 2020 by Michael Blanchette Photography

Amy Coney Barrett is now a Supreme Court Associate Justice.

It is the first time in 151 years (since Edwin Stanton in 1869) that a justice was confirmed by the Senate without the support of a single member of the minority party. Even Sen. Joe Manchin (D-WVA), who backed Brett Kavanaugh in 2018 (and Barrett for her circuit court seat three years ago), didn’t support her this time.

As Marsha Coyle noted on PBS, the Supreme Court went 11 years until 2005 without a change in Justices. In the next four years, the Court saw seven new Justices. Now we’ve seen three more in just four more years.

Justices are staying on the Court longer. In the 19th Century, the average tenure of a Justice was less than 10 years, due mainly to shorter life expectancy. Now that it’s becoming increasingly common for them to serve into their 80s, Justices are serving for 25 years, or more.

All of this is background to what we’ll have to get used to from Amy Barrett in the next few decades, including this quasi-campaign event:

There were understandably a few negative reactions:

Whatever happens going forward, please, please let’s not call her “ACB” as if she is some great legal mind akin to Ruth Bader Ginsburg. Barrett is to RBG what Clarence Thomas is to Thurgood Marshall; a facsimile of a Supreme Court Justice.

The NYT has a series of articles on How to Fix the Supreme Court that are worth your time. In one article, Emily Bazelon says this:

“….Republican dominance over the court is itself counter-majoritarian. Including Amy Barrett, the Party has picked six of the last 10 justices although it has lost the popular vote in six of the last seven presidential elections…”

The Republican Party doesn’t represent the majority of Americans. So it tries to achieve its goals by other means, even if that means perverting the intent of our Constitutional system.

We know that clear majorities of Americans favor reproductive rights, limiting political donations, stricter gun control and reversing climate change. But since the GOP controls the courts, it hopes to prevent these viewpoints from ever becoming law.

Movement conservatives are using a theory of judicial construction (Originalism) that didn’t exist until about 40 years ago. And they’re using it to overturn long-standing precedents, while also inventing novel constructions not found in the Constitution when it suits them (see Shelby County vs. Holder).

Among the options addressed in the Times’ article are: (i) Dividing the work of the Supreme Court into two parts, Constitutional issues and all others that concern interpretation of existing laws and statues. This would establish a Constitutional Court, an idea that several other countries have instituted (among them, France, Germany, and South Africa); (ii) Term limits for Supreme Court Justices; (iii) Adding more Justices to the Supreme Court; and (iv) Expanding the lower Federal Courts.

The Framers rejected the idea of a judicial retirement age. It was envisioned that a lawyer would need a lifetime of experience to become fully versed in the precedents that would govern their decisions as a Supreme Court Justice. But now, we have Amy Barrett serving as a Justice at age 48. The youngest Supreme Court judge ever was Republican Joseph Story, who was 32 when James Madison appointed him.

OTOH, term limits almost certainly require a Constitutional Amendment, since it would create an involuntary retirement from the Court.

Biden has said he will convene a commission to study Supreme Court reform. That kicks the can down the road. This is probably a good idea for now, until we see the decisions made by the current conservative majority in a few of the signature cases coming up this term. There is now a 6-3 MODERATE conservative majority on the Court, and depressingly, a 5-4 REACTIONARY majority on the Court.

For now, all we can do to change the Court is vote out of power those Republicans who denied Obama an appointment, only to cram three Justices through on Trump’s watch. We start by flipping the Senate in November.

Republicans are doing everything they can to lay the groundwork to overturn the election in the courts. The good news is that stopping them is easy: VOTE.

May the confirmation of Barrett be the last thing that the national Republican Party ever accomplishes.

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Ending Republican Hypocrisy Regarding the Courts

The Daily Escape:

Sleepy Hollow Farm, Woodstock VT – October 2020 photo by Kyle Seymour Photography

The Senate started its confirmation hearings on the nomination of Amy Coney Barrett on Monday. There is little doubt that she will be confirmed on a Party-line vote by Republicans sometime before the presidential election on November 3.

There are legitimate questions to ask about the ideological balance on the Court, which will be 6-3 in favor of the conservatives, a ratio that is likely to last for a decade or more. The WSJ had a piece asking “Is the Supreme Court Too Catholic?” The religion of individual justices is of supreme indifference to Wrongo, but after Barrett is confirmed, the Court will have six Catholics, two Jews and one Anglican.

Of the current crop of Catholics on the Court, only Justice Sotomayor was appointed by a Democratic president. It is assumed by Republicans that the justices’ Catholicism is a proxy for their presumed (or long hoped-for) willingness to overturn Roe v. Wade.

Another legitimate question is how Democrats should deal with the hypocrisy shown by the Republicans’ about-face on whether a new justice could be confirmed in the last months of a president’s incumbency. Four years ago, the Republican narrative was that Obama was picking a fight by moving to fill a Supreme Court vacancy after Justice Scalia died in February that year.

With a Republican now in the White House, it has become acceptable to jam through a Supreme Court justice nomination within days of the election. While that process conforms to the Constitution, it wasn’t what Republicans did when Obama was president.

Many Democrats are talking about expanding the Court, adding an even number of additional justices to help restore some ideological balance. The Republicans call this “court packing”. It’s worth remembering that FDR’s attempt to pack the court in 1937 was a political disaster for his Party. So Biden and Harris have been unwilling to say much on the subject.

Eric Boehlert points out that much of the mainstream press has picked up on calling it court packing, and are asking Biden to weigh in on the subject:

  • “Biden and Harris Need an Answer on Court Packing” (The Atlantic)
  • “Ruth Bader Ginsburg’s Death Revives Talk of Court Packing” (New York Times)
  • “How Democrats Could Pack the Supreme Court in 2021” (Politico)
  • “Harris Dodges Questions on Support for Supreme Court Packing at Debate” (CBS News)

More from Boehlert:

“For conservatives, “packing the courts” is an attack line — Sen. Ted Cruz (R-TX) said it would “destroy one of the pillars” of the Constitution, while Sen. Ben Sasse (R-NE) compared it to a “suicide bombing.”….”Expanding the courts” is a more accurate description of what might take place during the next Democratic administration.”

Eric Scholl at Medium points out that Justice Clarence Thomas has suggested recently that the Court should loosen up on one of its guiding principles: that of stare decisis, which means “to stand by things already decided”. To Thomas, it’s high time the Court starts overturning decisions that were previously approved. In part, because there’s now an opportunity to do it.

That’s rank politics, but it’s not new. In 2013, Sen John Cornyn (R-TX) had referred to President Obama’s appointments to the DC Circuit Court of Appeals as an “attempt to pack” the court. In October 2016, when Hillary Clinton was leading in the polls, National Review ran an article arguing that:

“The Senate should decline to confirm any nominee, regardless of who is elected. More than that, it is time to shrink the size of the Supreme Court.”

Instead, Republicans ask Biden if he’s for adding additional Court justices, hoping he falls in a trap, 21 days before the election. Tim Alberta tweeted:

The answer to court-packing Q is “Look, that isn’t our decision to make. Congress would need to pass legislation to expand the Supreme Court, and there’s no use speculating on that possibility when we’ll face immediate challenges on day one of a Biden administration.”

Not hard.

Not a bad answer. It’s good to remember that two Republican governors expanded their State Supreme Courts in 2016:

  • Georgia’s governor Nathan Deal’s three judge expansion shifted the balance of power on Georgia’s Supreme Court. He also added two new judges to the Court of Appeals.
  • Arizona’s Republican governor Doug Ducey added two justices to what was previously a five-judge panel.

So, as if you didn’t know, hypocrisy is alive and well in the Republican Party.

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Monday Wake Up Call – September 28, 2020

The Daily Escape:

Dead Horse State Park in Moab, UT – September 2020 photo by schumats1

“Few people have the imagination for reality” – Johann Wolfgang von Goethe

Here are a few stark realities that we couldn’t have imagined even five years ago:

First, a minority faction governing the majority with increasingly unpopular policies imposed through increasingly undemocratic means is not exactly a formula for a stable democracy. This is something that Wrongo wrote about last week. If somehow after the November election, that script is flipped, and we have a majority governing an ethno and religious-purity minority who won’t recognize the majority’s legitimacy to govern, we’re headed for dark times.

Once Coney Barrett’s confirmed, we’ll again be living in a Phyllis Schlafly country. Schlafly’s far-right, anti-feminist ideology rules the Republican Party, and soon, the Supreme Court. But it’s still contrary to American public opinion. A majority of Americans think abortion should remain legal, and 75% support Schlafly’s old enemy, the ERA.

But, unpopular ideologies can prevail whenever we’re complacent about our beliefs.

Second, we have a president who is a faker and a liar. The NYT has gotten its hands on many years’ worth of Trump’s federal income tax documents. You know, the ones he and his attorneys have worked so hard to suppress. From Eric Boehlert:

“In life outside the MAGA bubble, the tax return revelation is a big one because it’s hard to explain why, for the last decade, Trump has written off $26 million worth of dubious “consulting” fees. And it certainly appears the Trump Organization paid Ivanka Trump massive consulting fees for no-show work. All of this coming just five weeks before the election. The Times blockbuster is one of the more seismic scoops in campaign history.”

The Times’ story will most likely be a huge problem for Trump among independents and suburban voters who may have voted for him in 2016. Trump’s “fake news” dismissal of the tax story will only work among his super-loyal followers.

Kevin Drum turned the NYT’s reporting into a graph:

Long story short, since 2012 Trump’s been losing money every year. He’s lost money at pretty much everything he’s ever done. The only exception is The Apprentice and the licensing money it enabled.

From Drum:

“Trump’s ability to squander the money he inherited is breathtaking. He’s also deeply in debt, it turns out, with about $300 million in loans coming due over the next few years. It’s no wonder he’s been so assiduous at trying to turn the Oval Office into his own private ATM.”

That kind of financial exposure makes Trump a national security risk.

Third and finally, here’s Wrongo’s framing of the issues for Tuesday’s debate. This, from Michael Grunwald in Politico: (emphasis by Wrongo)

“The US budget deficit tripled this year to $3.3 trillion, by far the highest ever. The US economy shrank at a 31.7% annual rate in the second quarter, by far the worst ever. The trade deficit is at its highest level in 12 years. Consumer confidence is at its lowest level in six years. Unemployment claims, which had never topped 700,000 in a week before March, have topped 700,000 every week since March.

Farm bankruptcies are rising…Homicides are rising in America’s cities after decades of decline, while a series of police killings of unarmed Black Americans has triggered…civil unrest. The West Coast is on fire, and 2020 may turn out to be the hottest year in recorded history. America’s reputation abroad is the worst it’s been since the Pew Research Center began doing international surveys.”

And remember that virus thingy that Trump says isn’t a big deal? It has already killed 200,000+ Americans and is still spreading in 29 states.

Biden ought to just read that as his opening statement in tomorrow night’s debate, and then just say:

“Do you think you’ll be better off with four more years of these disasters that Trump has brought us? “

Time to wake up America! We have to imagine realities that would have been fiction just a decade ago. Once we wake up to how terrible our present state is, we need to vote in overwhelming numbers to gain sufficient political control to deliver a progressive future for all.

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The Supreme Court Goes Back to Work

The Daily Escape:

Pyramids viewed from Cairo Street, Egypt – photo by Hossam Abbas

The Supreme Court’s new term begins next Monday, and much of America’s culture wars will move in front of the bench for adjudication. Some of the issues being litigated include abortion, gay rights and gun control. It’s no secret that conservatives control the court, and its liberal wing is in retreat. This could be a momentous year in shaping the country’s socio-cultural future.

On Monday, October 7th, the justices will hear arguments in the case Kahler v. Kansas, regarding whether the 8th and 14th Amendments allow a state to abolish the insanity defense. Four states, Kansas, Utah, Idaho and Montana have abolished the insanity defense. It shouldn’t be a surprise that Kansas says yes, and so does the Trump administration.

Also on Monday, they will hear Ramos v. Louisiana, regarding whether the 6th Amendment guarantee of a unanimous jury verdict to convict someone applies to the states. Currently, Louisiana and Oregon permit non-unanimous juries.

On Tuesday, the court hears a case concerning whether gay and transgender people are protected by federal civil rights laws that bar employment discrimination. Three workplace discrimination cases will be heard. Two of the three cases ask whether “because of sex” in Title VII of the Civil Rights Act of 1964 prevents an employer from disadvantaging employees on the basis of their gender identity or sexual orientation. Fewer than half the states have laws against firing workers because they are gay or transgender. Now the Supremes will decide if the federal civil-rights laws protect the 8.1 million LGBT workers in America.

It may not surprise you that the Trump administration says Title VII doesn’t apply to gay and transgender workers, contrary to the view of the Equal Employment Opportunity Commission.

On November 12th, they will visit Trump’s effort to end DACA, the Obama program that protects mostly Hispanic young adults from deportation. The case is Department of Homeland Security v. Regents, University of California, where three cases were consolidated for argument in which lower courts decided that the Trump action violated the federal Administrative Procedures Act.

Also scheduled for Nov. 12 is a case in which a US border patrol officer shot and killed an unarmed Mexican teenager who was not on US soil, but hiding in a culvert between the US and Mexico. The question is whether federal courts can award damages to the family for the agent’s actions.

On December 2nd, they are scheduled to hear a major gun rights case. The case is NY State Rifle and Pistol Assn. v. City of New York. The challenge is to the city’s ban on the transport of licensed and unloaded guns outside the city limits. But the city amended the law, and is arguing that the case is now moot, since it has given the challengers what they sought. The case may be dismissed.

Among possible cases that have not yet been scheduled are two appeals regarding Republican-backed abortion restrictions enacted in Louisiana and Indiana. If the court were to take either or both of those cases, it would raise the possibility of a ruling that further curbs abortion rights.

The Louisiana case concerns a challenge by an abortion clinic to state requirements that doctors who perform the procedure must have “admitting privileges” with local hospitals. It is similar to a Texas law that the Supreme Court struck down in 2016, when Justice Anthony Kennedy sided with the court’s liberals. But last year, Kennedy retired and was replaced by Bret Kavanaugh.

It would be extraordinary if they take up this case and then overrule a precedent set just three years ago. The only thing that’s different is the composition of the court.

Looking further ahead, we may see contentious arguments on the limitations of presidential power. Likely subjects include the president’s push for the power to remove the director of the Consumer Financial Protection Bureau; executive privilege in battles over Trump’s tax returns; and use of a national emergency designation to use money appropriated elsewhere to fund the border wall.

And finally, there’s impeachment. In April, Trump tweeted that if “the partisan Dems ever tried to impeach”, he would “first head to the US Supreme Court”. There is little doubt that the Supremes would move quickly to hear such a case.

It wouldn’t be smart for Trump to expect them to come to his rescue during impending impeachment proceedings. In 1993 Chief Justice William Rehnquist wrote for a unanimous court that impeachment authority “is reposed” in Congress, “and nowhere else”.

Then, if the House of Representatives actually impeached Trump, Chief Justice John Roberts will find himself playing a constitutionally required role: presiding over the president’s removal trial in the Senate.

All in, a pivotal term for the Supremes and for America.

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New Evidence: Citizenship Question Added to Suppress Minority Voting

The Daily Escape:

Wallis Sands, NH – 2018 photo by CaptainReptar

“If conservatives become convinced that they cannot win democratically, they will not abandon conservatism. They will reject democracy.” – David Frum

Sometimes, the proof you need shows up just a little late. The Supreme Court will rule in June on whether or not a citizenship question can be added to the census in 2020. The case, Department of Commerce v. New York was argued before the Court back in April. At the time, most observers felt that a majority of the justices seemed inclined to support the administration’s position that there was no political agenda behind asking the citizenship question.

On Thursday, the NYT reported about a related lawsuit filed in the Southern District of New York, which shows that all of the relevant information to decide the case was not available. The new evidence was obtained from Thomas Hofeller. Hofeller was the Republican Party’s guru on redistricting of electoral districts for political advantage. After Hofeller died, his estranged daughter found his computers and hard drives, and her mother gave them to her. She discovered files that demonstrated quite clearly that her father had been central to the creation of the census citizenship question.

From The New York Times: (emphasis by Wrongo)

“Files on those drives showed that he wrote a study in 2015 concluding that adding a citizenship question to the census would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats. And months after urging President Trump’s transition team to tack the question onto the census, he wrote the key portion of a draft Justice Department letter claiming the question was needed to enforce the 1965 Voting Rights Act — the rationale the administration later used to justify its decision.”

This article on Thomas Hofeller offers evidence of the vote suppression intent of the census citizenship question that the Supreme Court is likely to approve in a few weeks. The new court filing shows that Hofeller’s digital fingerprints are all over the US DoJ actions to add a citizenship question:

  • The first was an Aug. 30, 2017 document from the Hofeller hard drives. The document’s single paragraph cited two court decisions supporting the premise that more detailed citizenship data would assist enforcement of the Voting Rights Act. That paragraph later appeared word for word in a draft letter from the Justice Department to the Census Bureau that sought a citizenship question on the 2020 census.
  • A second instance involves the official version of the Justice Department’s request for a citizenship question. It was a more detailed letter sent to the Census Bureau in December, 2017, presenting technical arguments that current citizenship data falls short of Voting Rights Act requirements. The plaintiffs in the new case show those arguments are presented in exactly the same order, and sometimes with identical descriptions as in a 2015 study by Mr. Hofeller. In that study, Hofeller concluded that adding a citizenship question to the 2020 Census “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites” in redistricting.

Seems damning, but why should the Supremes need more evidence? Three federal district courts had already decided this question without seeing this additional evidence. They were able to see through the transparent attempt by the GOP to undermine voting rights.

The 14th Amendment, Section II says:

“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

The founder’s intent there seems pretty clear: The whole number of persons. And since when is it the responsibility of a member of Congress to only represent the eligible voters in his or her district?

The new smoking-gun evidence shows that government officials lied when they used the Voting Rights Act as their excuse for including the question. But, that will likely be seen by the SCOTUS as irrelevant, assuming they believe that the actual reason is a permissible action by the Commerce Dept.

Republicans love to complain about those Democrats who are now advocating for eliminating the Electoral College, saying that doing so would amount to “changing the rules because Democrats lost.” What should be obvious is that Republicans are constantly, and relentlessly changing the rules. See Mitch McConnell’s rewrite of his Merrick Garland policy just this week.

Over and over, Republicans gerrymander and suppress the vote in whatever way they can. They do this as part of their effort to shore up the voting power of their white voter base, while diluting the voting power of minorities.

They know demographics are not on their side, so they are willing to take extreme measures to solidify their position, regardless of the impact on the nation.

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Monday Wake Up Call – October 15, 2018

The Daily Escape:

Early fall in Nuremberg, Germany – photo by voyageblonde

With so much anger about Brett Kavanaugh becoming a Supreme Court justice, it seems that Democrats care more about the Supreme Court than Republicans. As Sean McElwee has noted:

Democrats were more likely to approve of the court than Republicans by an average of a 14 point margin from 2010 to 2014. This gap increased…to a 32-point margin in 2016…even while the court decided cases like Trinity Lutheran, in which the court required the government to subsidize churches.

Democrats’ view of the Court was shaped by the Warren Court’s civil rights decisions (Brown vs. Board of Education), and Anthony Kennedy’s occasionally siding with Democrats on a few socially liberal issues.

The Dem’s higher approval of the court is striking, because it has been 49 years since the Supreme Court has had a liberal majority. From Marty Lederman:

On May 15, 1969, Justice Fortas resigned from the Supreme Court, thereby ending a seven-year period in which a 5-4 majority of the sitting Justices had been appointed by Democratic Presidents. I had just turned eight years old.  I’m now almost 58. And yet that day in May 1969 remains the last moment in time that a majority of the Court was appointed by Democrats.

In the 2016 presidential election, many Democrats said that the chance to appoint new Supreme Court justices was reason enough to vote for Hillary Clinton, but too few Democrats turned out in 2016, so control of the Court is safely in the hands of Donald Trump and the GOP for what could be another 50 years. More from Lederman:

In only seven of the past 108 years (1946-1953) has the Chief Justice of the United States been a Democrat who did not fight on behalf of the Confederacy.)

So, should we conclude that Democrats like the Court, but fail to see it as a priority at election time? There are a few other ideas to go along with that.

  • Democratic Presidents have served five terms since 1969, and have won a majority, or plurality of the popular vote in seven of the twelve elections in that period–including in six of the past seven elections.
  • Democrats have held a majority of the Senate in more than half of the 25 Congresses since Fortas’s resignation, including some with huge majorities. But the Court has remained in GOP control, and will for decades to come.
  • Consider that only Justice Thomas was appointed by a Republican President who entered office with a majority, or plurality of the popular vote.
  • In the 27-year span, which covers the entire tenure of all of the current Justices, a Republican President has won the popular vote in just one election, 2004.

It gets worse: The Senators who confirmed Gorsuch represented states in which only 47% of Americans lived. Back to Lederman:

Using estimated 2018 population figures—and not even counting the millions of Americans in the territories, including Puerto Rico—my rough calculation is that Kavanaugh was confirmed by the votes of Senators representing only 44% or so of the nation’s population…

So, our democracy, which specifies two Senators per state, makes approval of liberal justices an issue, since too few Senators represent liberal-leaning states.

But, liberals didn’t need to care about the Court’s direction for most of the second half of the 20th century. During that period, there were many victories in the Court that either enshrined liberal policy preferences directly, or made it possible for them to be legislated into existence.

There is a Japanese concept in military science called “Victory Disease” which occurs when complacency or arrogance, brought on by a victory, or a series of victories, makes an army underestimate the battle at hand. This is what infected Dems over the past 50+ years about the Supreme Court.

By the 1990s, liberals had largely stopped caring about the courts, except for the gay rights movement.

But, since the Rehnquist and the Roberts Court, it is now conservative policy preferences that are either being enshrined directly, (Shelby County, Hobby Lobby, and Citizens United) or are possible because of refusals to hear cases, such as Brakebill v. Jaeger, which disenfranchised Native Americans in North Dakota.

So it’s time for Democrats to Wake Up! And to have a laser focus on the Court.

When Hillary lost and Trump was inaugurated, many people were furious. Now isn’t the time to be furious, it’s time to be serious.

The mid-term election isn’t a game, and turnout is everything!

Otherwise, Dems won’t take back the House.

Then, they would be in danger of becoming a fringe party.

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Brett Kavanaugh’s Just Another Republican

The Daily Escape:

Storm brewing near Vilano Bridge, St. Augustine FL – June 2018

At Vox, Dylan Matthews has a detailed review of Supreme Court Justice Nominee Brett Kavanaugh’s history of being in the middle of Republican wars since the 1990’s. He represented the 6-year-old Elián González pro bono in an attempt to keep him from being deported to back to his father in Cuba in 2000.

Kavanaugh also worked on GW Bush’s legal team during the 2000 Florida recount, which resulted in Bush winning a party-line Supreme Court vote to install him as president. Then:

Kavanaugh worked in the solicitor general’s office under George H.W. Bush….The SG under George W. Bush was Kenneth Starr, who took a shine to Kavanaugh and hired him to join the independent counsel’s office in 1994.

Kavanaugh became a Republican glamor boy with the investigation into Bill Clinton’s affair with Monica Lewinsky: (link, italics and emphasis by Wrongo)

Eventually, Kavanaugh, and the rest of Starr’s team, moved on from the substance of the Whitewater real estate deal to the matter of Clinton’s affair with Monica Lewinsky. In his history of the investigation, “The Death of American Virtue: Clinton vs. Starr”, Duquesne University’s Ken Gormley notes that Kavanaugh, “considered one of Starr’s intellectual heavy-lifters, pushed hardest to confront Clinton with some of the dirtiest facts linked to his sexual indiscretions with Lewinsky.”

In a memo to “Judge Starr” (with a copy to “All Attorneys”), Kavanaugh wrote:

After reflecting this evening, I am strongly opposed to giving the President any “break” … unless before his questioning on Monday, he either i) resigns or ii) confesses perjury and issues a public apology to you. I have tried hard to bend over backwards and to be fair to him. … In the end, I am convinced that there really are [no reasonable defenses]. The idea of going easy on him at the questioning is thus abhorrent to me….

The President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into a shambles — callous and disgusting behavior that has somehow gotten lost in the shuffle. He has committed perjury (at least) in the [Paula] Jones case. … He has tried to disgrace [Ken Starr] and this Office with a sustained propaganda campaign that would make Nixon blush

It should be unimaginable for a nice young Catholic lawyer, but Kavanaugh then listed a series of ten questions that he wanted Starr to ask Bill Clinton. All of them were explicit and unsavory. Wrongo will offer one, and it is the least unsavory:

If Monica Lewinsky says that you masturbated into a trashcan in your secretary’s office, would she [be] lying?

Starr didn’t ask any of Kavanaugh’s questions, but did ask others that were similar. We’ll never get past what Bill Clinton did to the Democrats. Hillary too.

This is the real Kavanaugh: He’s not just the guy we are told is a good father, CYO basketball coach, and feeder of the poor. He clearly had a prurient interest in Clinton’s affair with Lewinsky.

We know that he will most likely be on the Court if it is tasked with judging the constitutional validity of whatever Special Counsel Robert Mueller produces regarding the man who appointed Kavanaugh. This has nothing to do with impeachment, it is largely about Trump being compelled to testify to a grand jury, as Bill Clinton did in 1998, compelled by Ken Starr and Brett Kavanaugh.

But, we now know that in 2009, Kavanaugh changed his mind and said he is against compelling a president to testify: (emphasis by Wrongo)

Having seen first-hand how complex and difficult that job is, I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible. The country wants the President to be “one of us” who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office….

This is not something I necessarily thought in the 1980s or 1990s. Like many Americans at that time, I believed that the President should be required to shoulder the same obligations that we all carry. But in retrospect, that seems a mistake.

Now he’s for insulating the president. The Senate shouldn’t allow him to use what he wrote in 2009 as an alibi for what he would do if a Mueller-related case came before him.

Unless Kavanaugh agrees to recuse himself from any such case, no Senator should vote for him.

Given Kavanaugh’s desire to ask difficult questions of Bill Clinton, Democrats shouldn’t let these hearings pass without some very pointed grilling. Otherwise they will have failed.

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