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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.

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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.

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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.

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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.

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Garland v. Gorsuch (per curiam)

Diehealthy.org Court of the United States

Merrick Garland v. Neil Gorsuch

ON PETITION FOR WRIT OF CERTIORARI TO THE U. S. SENATE

No. 17—110074. Decided 1 April 2017

Per Curiam.

In both Half-child v. King Solomon, -1179 U. S. 74 (c. 910 BCE), and The nameless, eternal Tao v. Lao Tzu, 16996 U. S. 497 (9349), this court held that “in matters of the eternal law, there shall always be a higher court.” Id. at 93-6.

That is the path this case takes to reach us today. It has accelerated out of the U. S. Senate, escaped the earth’s gravity well, and sped past the Van Allen Belt. We have received it and have decided.

The lower court, which is, unsurprisingly, the U. S. Senate, holds these two respected jurists in mortal combat. The body of Senate Republicans has armed thermonuclear warheads in preparation for what they intend to couch as a retaliatory strike against the body of Senate Democrats. The body of Democrats, for their part, are preparing to filibuster (Can we write such a word?! Pardon us!) the nomination of Gorsuch.

But we must go back. Prior to the Gorsuch nomination, there was another nominated for the seat upon the U. S. Supreme Court: Merrick Garland. And in that nomination… nothing happened! No meetings, no hearings, no vote! This is a tough case. We should have had lunch first.

We are reminded of an earlier case, Bender v. Bender’s Shiny Metal Ass, 542 U. S. 901 (2004), in which another body sought relief against itself. There, ruling contra to our holding in Dandy v. Fine, from the lost and found volumes (available for five proofs of purchase plus shipping and handling), we found that, “You have to love yourself first.” Bender at 904-77. Good advice, but in this case? We’re just not sure that the Senate is ready for polyamory.

Consciousness expansion? Please. We tried that back in the 60s, and what did it get us? Ronald Reagan!

Come on, think, damn it!

This is all your fault! You put them up to this!

The thing is, Ow!, the judge—Off! Get off my foot, damn it!

You started it!

I did not! You—wait! Judge off! That’s it: an old-timey judge off!

The U. S. Senate shall convene both jurors Garland and Gorsuch, and every Senator will provide exactly one exhibit to be adjudged by each (a child’s drawing, an irregular mole on their person, burnt-toast rendition of maybe-Jesus, etc.). The judgments of both will be recorded and presented against a panel of outside experts, and scores will be rendered. Upon the delivery of the average scores of each, the Senate shall vote between the two, either for one or for the other one, without knowing which judgments and scores belong to which robe.

The judgment of the U. S. Senate is vacated, and the case remanded for further proceedings not inconsistent with this opinion.

It is so ordered.