Categories
meantime

Justice Ginsburg’s Vacant Seat

As I wrote back in 2016, I believe the Constitution requires a president to nominate (not just for SCOTUS, but for all appointed positions) within some period of time. Congress should designate that period, but 90 days seems appropriate barring statutory guidance. Donald John Trump has repeatedly failed to fill positions in our government, or to fill them through the constitutionally-required process.

But this one he will not fail to fill. And the Senate, by the same shared shall in the Constitution, is required to offer its say on any nominee. They, again after some reasonable time, have a duty that they failed to undertake, that they were derelict and contumacious in failing to perform, to vote up or down any nominee for any appointed office. As such, I believe that calls to not hold a vote, or to obstruct, are misguided.

The call should be to vote down any nominee until the results of the election are known, and if there be a change in officeholders, whether in the Senate or the Presidency, then the new members should bout it out to finality and confirmation of whoever is fit to fill the seat.

I make that call: vote down whomever Donald John Trump nominates, until such time as we know what the people say.


More generally, the bulk of Republican leaders, certainly nationally, and in some states, seem to not care what the people say. They work to suppress the vote. They work to hide the truth. They put themselves forth as foes of the right and good, as degenerates. And so, we may have a six–three court, a Republican-packed court. For a time, anyway.

And women’s rights may suffer. And minority rights, voting rights, the rights of those suffering in the penal systems, speech rights, human rights… God knows. And those of us who do not support the lowest star shall do what? Route around the damage. Vote with our wallets, our feet, our raised cries against it. And vote with our ballots.

The cooling saucer has become an icebox, with no COVID bill of any worth. The icebox will not renew the Voting Rights Act. They will not act on any matter of justice, and instead priority for them is to place a padlock on the Judiciary, their last, best hope to maintain power and supremacy over a people who deserve better.

But Americans have long fought off masterdom by anyone. In time, Americans have bested every tyrant before it. And so we, the people, will fight off these latest mutants to claim mastery of our lands and of our people. Of that I have no doubt.

The matter at hand is not if, but as always when? And right now, you can help make that when be very soon, by registering, and by voting.

Do it for Justice Ginsburg. Do it for the dead. Do it for your mothers, your sisters, your daughters, your gal-pals, your female manager, coworker, customer. But also do it for your homeboys, fathers, brothers, sons. The government runs on elections, it is the fuel of that engine. Every citizen who votes fills up that tank so it can run better.

Categories
society

Where are the Goalposts?

Senator Mitch McConnell recently accused opponents of Judge Brett Kavanaugh’s nomination to the Supreme Court of moving the goalposts. While he did not elaborate, what the phrase means is something like, “They believe that their current efforts to thwart the nomination will fail, so now they are opening new attacks in an effort to stop him.”

The problem for McConnell and Kavanaugh and all of us is that there is only one set of goalposts. They don’t move. They are: have a good government. But what does that mean?

Below I will outline the facets required for a legitimate and useful justice, which can also serve as a place to look back for future nominations so that McConnell and his spawn cannot say the goalposts have moved.

The list:

  1. Legally qualified
  2. Of good character
  3. Relatively non-partisan

Legal Qualifications

A justice or judge should have a solid understanding of the Constitution and the law. E should know that the law is not always adequate and be willing to admit that. E should be also willing to admit that e is not perfect at interpreting. But their record as legal professionals should show distinction and merit as contributors to a diverse and ingenuitive body.

Character

E should lack moral turpitude, and be repentant for past mistakes and malfeasance. E should be respectful of the other branches of government, of eir critics, and of eir colleagues. E should be candid when questioned.

Non-partisanship

Especially in these times, when Republicans fail to credit the Democrats for having a tough time dealing with an outrageous administration, and Democrats feel particularly vulnerable and overreact in some cases, the judiciary should not be partisan. It should recognize that it is holding a pair of scales, not a paper fan emblazoned with a candidate’s name.

A judge (again, this speaks to character) must know when to bite eir tongue. Nobody expects em to be wholly disinterested in the political environment, but e should be measured eir interest, and e should refrain from partisan attacks entirely. If speaking about a political figure, a judge may comment on the person, but should not connect that to the party.


Re: Judge Kavanaugh, he possesses a useful measure of legal qualifications and experience. There are some spots of trouble, usually in dissents, which is where they usually are. There are political concerns about how he would approach some issues. But those are politically contentious issues, and like it or not, we will have to find political solutions to them. People will be harmed in the process, but I do not find that a per se reason to disqualify him.

Abortion, for example. Judge Kavanaugh would likely weaken women’s rights. Republicans like that about him. Democrats dislike it. They can and should vote accordingly, as Republicans know that if he does rule in that fashion in a future case, it will cost them politically. Just as Democrats knew that trying to open access to healthcare would cost them and moved forward anyway.

On the matter of character, Judge Kavanaugh has a mixed record. There are spots of trouble alleged in his formative years and in college. His professional record remains relatively clean by the available information (which is, unfortunately, artificially constrained and therefore not reliable). And his behavior in response to allegations against him showed some glaring examples of bad behavior.

At the very least, he showed disrespect to the country in his testimony before the Senate Judiciary Committee, and while he apologized to a senator, he has not apologized to the nation. As the Senate represents the nation, it is owed an apology unto itself.

Of non-partisanship, the man can make no claim to it. He served as a heavy-handed partisan on multiple occasions, and his public behavior at the hearing was overtly partisan in the most egregious fashion. It would be a gross mistake, as it has been in the past, to install a partisan hack as a justice.

Categories
unAmerican

Accusations in a Vacuum

Update: a back-room agreement seems to have been made by Jeff Flake to see at least some investigation done by the FBI. We’ll see if that happens, but it would be a step in the right direction even if it is not definitive.

The failure of the White House to have the FBI to investigate the accusations against Judge Kavanaugh, alongside his own failure to publicly call for said investigation, and the failure of the GOP to call for an investigation, means I have no choice but to believe the accusations. They are credible based on the available evidence, and any evidence that could have impugned them is left ungathered.

There is sufficient evidence that Judge Kavanaugh lacks credibility:

  1. Unexplained discrepancies between earlier testimony and the limited documents released on his record from his time working in the government under the Starr investigation, in the Bush administration, and regarding his correspondence or other knowledge of Judge Alex Kozinski’s abuses.
  2. A lack of specificity regarding his debts.
  3. His lack of candor in the Fox News interview regarding his high school behavior.
  4. His failure to call for an investigation that could plausibly clear his name.
  5. His lack of candor in the hearings on Thursday.
  6. His indulgence in right-wing conspiracies regarding the process.

Meanwhile, the only accuser given the chance to testify, Dr. Christine Blasey Ford, has had a consistent recollection of the incident going on some six years. She called for the FBI to investigate. There is no offered evidence that impeaches her telling.

Given the gravity of the alleged behavior, high school or not, it is damning if true. But we don’t have the luxury of deciding truth. We have to choose who we believe. In a natural vacuum, you might believe Ford or Kavanaugh. But we have here an artificial vacuum, created by the reluctance of the GOP, including Kavanaugh himself and the man who nominated him, Mr. Trump, to have the matter professionally investigated by the FBI. That artifice must weigh heavily against Kavanaugh.

The GOP in the Senate is now on trial. If they vote to consent to his appointment with the bad process, they will thereby sign a statement of their own incompetence at governing. They will disqualify themselves from the claim to legitimacy that is vital to the functioning of a democratic republic. All of this is a result not of Judge Kavanaugh’s alleged crimes, but of the very real process failures at the hands of the Trump administration and the Senate GOP.

There are sufficient leads for an FBI investigation to be conducted, even at this late date. They might find exculpatory evidence. They might find corroborating witnesses or facts. They might decide to have Mark Judge testify. The GOP’s failure to have the matter investigated requires a jaded eye fall on Kavanaugh’s rebuttal testimony. He is unfit to serve on the Supreme Court purely due to the process failures here.

If the president chooses, withdraw and renominate him with an FBI background check that encompasses these allegations. But, where we are today, any Senator worth eir salt will vote against Kavanaugh unless and until the public facts are improved. The damage of doing otherwise is a major blow to the integrity of our institutions.

2018 midterms are in five weeks.

Categories
society

The Kavanaugh Process

One of the features of the American judicial system is the notion of process. It’s there in the Constitution: “due process.” The notion that how you proceed (shared root with process) is just as important as the result of the proceedings.

The Republicans have elected to follow a mangled process for deciding whether to consent on the nominee for such a process-oriented institution. Hundreds of thousands of documents withheld. Conflicts in the release process that would make Lady Justice tear off her blindfold and toss down her scales, walking away in disgust. Confidentiality markings that are meant to obscure rather than protect.

Another low point. The thinking among Senate Republicans seems to be that, given their map for the 2018 midterms, they have nothing to lose. When your team is virtually guaranteed, no matter the wave, that you’ll retain your majority, that’s when you say “fuck the voters.” Except that’s not how our country is supposed to work. That’s exactly the kind of tribal, might-makes-right thinking we sought to abolish in forming the nation.

I expect that they will feel the sting of their indifference to America’s flag and its defenders in due time. The Republicans in the Senate may be safe in 2018 (remains to be seen), but they will not be safe forever. Kavanaugh may yet be confirmed through a process that any judge in any court in the land would bang the gavel on, and bad judges do real damage. That’s regrettable, lamentable, but at the end of the day all the rest of us can do is keep working to remedy the injustices, whether they are natural or artificial, political or commercial.

To put it another way, if Kavanaugh is confirmed, if the court rules poorly, the choice remains of how to react. I do not expect that the public will abide in bad law. It takes time, it takes effort. The law is subject to amendment.

This is just the sort of power shifting that Senator Sasse pointed to in his opening remarks (The Washington Post: 4 September 2018: Amber Phillips: “Ben Sasse on why Kavanaugh hearings are so ugly”; see especially the four-point argument mentioned). Having an imbalanced court inevitably pushes voters in the other direction, like carrying too many groceries in one hand leads you to lean the other way to compensate.

There’s an open question in game theory about how necessary such shifts are. That is, whether congress could self-reattach (to extend the self-neuter analogy used by Sasse), or whether some outside event is required to provoke such a response. If, in fact, such outside agitations are requisite, then in our next revision of our governing systems we should seek to build-in mechanisms to induce rebalancing more frequently.


We are just over eight weeks out from the election.

Categories
society

A Standard District

The question before the Supreme Court in Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland) isn’t really whether partisan gerrymandering is unconstitutional, but whether there is a standard they can set forth that will be effective. Such a standard does not explain how states should develop their districts, but only how to tell if they have not done their job with fidelity to the law.

The best fix, as usual, would be for states and congress to work the problem out. But given the problem is that we can’t elect moderate representation (due to gerrymandering), it quickly becomes a chicken-egg paradox.

Although there are various suggested standards to use, it is likely none of them are ideal enough for the members of the court who don’t want to have to go ten rounds on the subject. But that should not stop them from imposing an imperfect standard. There are plenty of instances where the court had to refine itself in case after case. And there is always the opportunity for interplay between the federal and state legislatures on the matter.

Consider tea. People add milk and sugar (or other sweeteners) to make it taste better. Some like tea stronger, some weaker. There is no perfect cup of tea. But when you order tea from a restaurant, or you buy a canister or bottle of tea from a vendor, they have normalized the tea. They are producing a product that, on average, will not be perfect tea for anybody, but will be acceptable tea for everybody.

Now, they could punt. They could rule per curiam and open the floodgates to hear challenges on every district until a standard is found. If they believe that these particular districts are unconstitutional, justice demands at least that.

But even that ruling must articulate a why that points to the future grounds where some standard would be built. The basic shape of partisan gerrymandering is non-compactness, is choosing to shift pockets of voters either to concentrate or dilute them. The standard, therefore, must be to the strength of the tea. Nobody buys watery tea, and nobody wants it too strong.

Thus, in comparing districts, they should each be tea and not tea concentrate and not water with tea flavor. If quality control lets a few stronger or weaker through, that’s tea for you. But if quality control misses the basic task, that violates the constitution. Toss it and the QC inspector in the harbor.