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.

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.

Why the Senate Murdered the Judicial Filibuster

Why did the Senate kill off the filibuster for Supreme Court nominees?

I’m asking, because I have no idea.

The filibuster was meant to let the minority block a nominee under circumstances like these. Instead, the Republicans decided it was useless and discarded it all while praising what it represented.

It doesn’t add up. Was the filibuster talking to the Russians?

And what other rules might be at stake? Have the Republicans been bitten by the two-out-one-in rule that the president is using?

They want to add a rule about forcing all Senators to eat bacon, which means no Judicial Filibuster and no pants? Great.

Or maybe the Republicans think that the immediate gain of having no cloture hurdle will pay off. All the liberal justices will die or retire, and Trump will nominate Neil Gorsuch’s five sisters to the bench (all played by Gorsuch in drag). Nobody will notice the crooked lipstick, and the court will finally rule that the Constitution says that Republicans are the cool kids.

But they know full well it’s a matter of when and not if the Democrats will be positioned to confirm another justice. Are they betting that the Democrats are better men than they, willing to be more moderate in their nominations, willing to actually hold real hearings?

Because that’s been true, to a point. But the rhetoric from Democrats is getting harsher. The Democratic streak of Republican-style obstinacy may just be coming out, and the Republicans won’t be safe.

It would have been far simpler to find another Neil Gorsuch. There are at least ten thousand qualified people to sit on that bench. Going to 9 9 9 9 will not threaten our strategic reserve of judges.

Or maybe this was the moment for the Republicans to lay down the law. Cut the head off in the bud, like Barney Fife used to say. Now the Democrats know which side of the pants the bread is buttered upon. Wipes dust off of hands.

Now that the Democrats have been denied all power, they will simply pack it up. It’s not like the Republicans need them anyway. They’re not the Republicans’ real mom.

It all just seems like too small of a fight to upend the rules of the body for. Time will tell and teach.

A Supreme Court Vacancy in an Election Year

First, although I disagreed with many of Justice Scalia’s opinions, both legal and otherwise, may he rest in peace and have the best of luck in his future endeavors.

The fact is that a vacancy in the Supreme Court is just that, and we ought to fill it. Why?

  1. If there’s another hanging chad election a la Florida 2000, a Bush v. Gore in 2016 would get deadlocked in the Supreme Court and the appellant thereto would lose. In the case of Bush v. Gore, Bush would have lost if there had been a conservative vacancy in the court. The decision was divisive enough as it was, but to have the case decided by anything less than the top court would have made it that much worse.
  2. If there are splits in cases of original jurisdiction to the Supreme Court, of which there have been two in the history of the court, unlike appeals where the lower ruling stands, flip a coin. In one case they let it gather dust, while in the other they delivered an order despite the split—a sort of tie goes to whomever situation—only to overrule themselves later.
  3. The splits on appeal are almost as bad, leaving the law different depending on the circuit, at least until a whole Supreme Court can come to a decision (or the split is broken).
  4. For standing cases, the court may follow the argle-bargle approach as with original jurisdiction: sometimes rehearing once a full bench is present, other times affirming-by-split.

In other words, leaving the vacancy and dealing with the fallout is very much a kludge.

Arguments that the Republicans could benefit by stalling and hoping a Republican wins the 2016 election (and/or that the Senate stays in Republican hands) are worth examining, too.

  1. If the Democrats retake the Senate, the stalling is a loss: they can confirm a replacement (either before the next president is sworn in, or, at their option, letting the next president nominate someone else).
  2. Stalling will hurt marginal GOP Senate candidates. This leads right back to the first list item, but this harm goes beyond the SCOTUS balance. If the elections are close anyway, bad optics can tilt the scales. And Senate elections in presidential years tend to be closer.
  3. Stalling will hurt the GOP nominee for president. They will have to stand before the people and argue that they know the perfect judge that deserves the seat. They, essentially, want to pick the winner and loser. But they also will have to basically state that if they win, they won’t nominate anybody in their last year. It’s just constitutional mutilation.

But the GOP has to save face. The rest of their base, outside the handful of Senate seats, will send more Cruzites to muck things up even more for them if they can’t deflect the idea that they caved to President Obama.

I suspect that Obama will announce the nomination of a fairly moderate liberal. The Senate will wring its hands, shooting off a lot of fireworks from folks like Senator Cruz. They will find some way to save face, possibly by wearing welding masks, but will eventually move forward on the nomination.

Legal Boundaries to Prayer

The Supreme Court heard arguments this week in the case, Town of Greece v. Galloway. The case examines the constitutionality of legislative prayers.

The crux of the disagreement comes from the question of how a prayer can be non-sectarian. The prayer giver’s religious background surely must taint the prayer with that viewpoint, the appellant and their coterie argue. They seem to rely on the historical aspect to defend the constitutionality in doing so.

The appellee argues the contrary, that there can be clean prayer, free of denominational frictions that would put off all but the staunchly non-religious and the pure minorities believing, for example, in true polytheism.

Several examples come to mind that support the latter. The first being pseudocode in computing. Pseudocode represents the equivalent of the non-denominational prayer, the secular invocation.

In computing we have various languages with various syntax and conventions beyond. But psuedocode exists to express computational ideas in a way that avoids the rigor and trappings of any particular language.

Further, we see examples of pseudocode that belie their origins from a real language. The use of an odd var or an int or of a particular way of writing a name (eg, open_door() versus openDoor()). But still, it remains pseudocode.

Another example comes from the Spanish-speaking priest. The priest gives mass in Spanish, prays privately in Spanish, reads the Bible in Spanish. But when asked to give the invocation for an English-speaking legislative body, the priest may give the prayer in English.

The priest does not believe that her gods will not hear her English prayer. Or if the prayer lacks certain accoutrements of her typical prayer in a sectarian context, she does not worry that the gods will ignore it.

No, we understand and expect that public prayer, meant for public purpose and public consumption, will be constructed appropriately.

That said, the question arises of what remedies or tests might be drawn to the task of both allowing these public prayers while limiting their sectarian nature.

One option would be to adopt a test similar to the so-called Miller test of obscenity cases. This would be ill-advised, as that test violates itself in ways that appeal to the prurient interest.

A test asking whether the prayer taken as a whole appeals to sectarian concerns, and uses patently sectarian language, and lacks serious secular spiritual value? We need less of this sort of hand-wringing law.

We wanted them to behave, we really did. Just a good, clean, non-denominational quasi-Christian prayer; just what we ordered. But there, in the home stretch, they started ranting about the golden hemorrhoids from 1 Samuel and now we must all be rebaptized in the ink of the First Article of Amendment.

Another option, even less appealing, would bar invocations and prayers entirely. No reminder of the higher purpose in legislating, just right into passing laws that benefit the corporations that funded the campaigns. Talk about bleak. Imagine how bad things would get! Prayer must be the only thing preventing the federal legislature from outright gridlock… oh.

But still, barring prayer would lose something important. The ability to add some timid poetry to the start of a legislative session. The occasion to pause and reflect, to acknowledge the judgment of the generations to come.

Computing attempts many other options. Whitelists, blacklists, graylists. Bayesian filters. Maybe a few prayers would be barred for sounding like they wanted to help you enhance your genitals. Most would probably slip through.

The whitelist could employ an official governmental prayer writer, and maybe some committees appointed to determine the secularity of the written prayers. A blacklist would work better for specific prayer givers who had offended in the past.

Rotations. “We’ll split up the week. You can have lymphoma, tuberculosis and —” It might have worked for Jack and Marla, but the court seems to acknowledge that requiring such a scheme, imposing it, would not. It smacks too much of separate, but equal.

Guidelines seem to be the order of the day, but the court may not place them in their main decision, instead trying to suggest that legislatures adopt some common sense in the concurring opinions. Guidelines to be offered to prayer givers, such as, “Just say no — to overtly religious calls in your prayers.”

I’m starting to think the aforementioned example of a Spanish priest may be the best remedy of all. Have the prayer be given in a language few, if any, understand. Nobody can claim to be offended if the prayer gets beeped out in Morse code, or belched out in Latin.

All rise, bow your heads, and make sure your tray tables and seatbacks in their full upright and locked positions, for the opening prayer.