Twenty Seven Years On, Old White Misogynists Still Get To Send Liars To The Supreme Court

Twenty-seven years on, little has changed in America. Old white men still get to make liars into Supreme Court Justices. Indeed, things have worsened. Back in 1991, the Senate merely elevated a serial sexual harasser to the Supreme Court. Now, they get to send lying, rapey fratboys to the bench. I suppose that’s not so surprising when our President is also a ‘man’ who routinely sexually assaults women. And the US Senate continues to be packed with misogynists.

Brett Kavanaugh, who give ample evidence yesterday that he is a unhinged, vengeful, and demented Republican hack, also established yet again, by means of his constant evasions and his repeated obfuscations, that he was guilty of the charges Christine Blasey Ford‘s powerful testimony had laid against him. On nine separate occasions, he filibustered when asked if he would support a full FBI investigations into the ‘charges’ he was facing. For a man who was supposedly so upset that his good name had besmirched, who was ready to swear on God–though this must be reckoned our culture’s most useless oath-taking of all–that he was innocent, he was remarkably unenthusiastic about the prospects of an inquiry that would support his claims. He knows that once a full FBI investigation is launched, the likes of Mark Judge will not escape inquiry or subpoena; witnesses will be questioned closely; corroborative evidence will mount. And a far more comprehensive picture will emerge of the kind of man the Senate is sending to the Supreme Court.

Kavanaugh did precisely what one would expect a guilty liar to do. He knows that the political calculus favors him. He is backed by a serial sexual abuser and harasser and the Republicans in the Senate. Kavanaugh knows that once he is nominated the game is up; he will not face any threats to his lifetime tenure on the Supreme Court. The Democrats, were they to come to power in 2018 or 2020, in the House and Senate, will not pursue impeachment proceedings against him. They will be too busy engaged in a ‘healing’ process, in ‘moving on.’ All Kavanaugh had to do–and he did just that–is continue to lie, deny, obfuscate, evade, and of course, to show that he is a good little Trumpkin who has learned the right lessons from his master, be as offensive and deranged as possible. Most usefully, that would send a loud and clear signal to the folks on Fox that he belongs on the Supreme Court; they can be counted on to break out the pom-poms and assemble a cheering squad as quickly as possible.

What a contrast yesterday’s hearing provided: Ford was dignified, knowledgeable, and polite; she elevated the proceedings. Kavanaugh bragged, preened, yelled, interrupted, condescended, refused to answer questions, and ranted; he dragged the proceedings down into the basements of the many houses where he and drunken buddies assaulted women.

Stand by for photographs of Brett Kavanaugh, Donald Trump Jr., and Stephen Miller celebrating his confirmation with a few ‘skis’ at a DC watering hole. Our ‘republic’ has the leaders and judicial sages it deserves.

America’s Next Supreme Court Justice, Brett Kavanaugh, Is A Lying, Rapey, Fratboy

I believe Christine Blasey Ford; I believe Brett Kavanaugh did precisely what she accuses him of doing. My reasons for offering this expression of my beliefs are quite simple: Brett Kavanaugh has done everything possible–especially during his ludicrous interview to Fox News yesterday–to indicate to me that he not only did what Ford alleges he did, but that this kind of behavior was par for the course for him and his drunken prep school buddies. (As various other testimonials about his rapey and drunken belligerent behavior on other occasions seem to confirm.) I’m not convicting Brett Kavanaugh in any legal domain and of course, were the Senate not to vote in favor his nomination, they would not be doing so either–they would merely be letting him continue in his present position at the  highly prestigious Federal Appeals Circuit as a judge; still, given these two sources of information available to me about what happened some thirty-six years ago, I’m inclined to find one of the pair named in my opening sentence above vastly more credible.

Ford, that is. Not the dude who looks like just about every other rich, privileged, self-satisfied, smug, drunken frat boy it has been my misfortune to either personally encounter or read about. There is a history to these matters, and in almost every single reckoning, dudes like Brett Kavanaugh are the guilty ones, yet almost always unpunished, and women like Ford, who have been assaulted or harassed, are forced to suffer further indignities. (Three women friends of mine have been raped; not one of them ever filed a report. Their rapists still walk free.)

Seeing isn’t believing. Most of the knowledge we claim about the world comes from testimony, written or otherwise. I know the sun is 93 million miles from the earth; reliable, authoritative, scientific sources tell me so. I know Napoleon came to power in 1799; reliable historical sources tell me so. Neither of these claims graduated to the status of knowledge via a courtroom; they went through ‘standard epistemic channels’: statement, corroboration (possibly via other testimonials), confirmation by taking actions based on the truth of these propositions, and so on. If we were to examine the corpus of our beliefs, we would find that the grounds we have for believing them are exceedingly varied; very few of them have been vetted by any kind of legal standard. There is no reason to hold, as many obfuscators would have us do, that the grounds for rejecting Kavanaugh’s nomination should be a ‘conviction’ by the standards of a criminal court. It should merely be enough that we find ourselves agnostic no longer, and inclined to believe one account. On which we could base our future actions. Like we do every single day of our lives. Context matters, yes, and this is a nomination process for the next Supreme Court Justice. But it is no more, and no less, than a highly dramatized job interview. There are no criminal penalties here. Our standards should be appropriately configured.

And when I do that, I find that I”m in a very familiar epistemic situation: on one side, a graduate of an institution–a fucking petri dish for toxic masculinity–that breeds and confirms privilege, which condones drunken behavior, imbued with a sense of entitlement, allegedly engaging in a species of behavior that is, by all historical and cultural accounts, very common to such places, and on the other side, a woman alleging an assault whose parameters sound very familiar, and who did not speak up for years because she feared precisely the reaction sent her way by the Republican Party.

The evidence is in: Brett Kavanaugh is a lying, rapey, fratboy.

Fighting The Gorsuch Nomination Is A Lost Battle; Fight It Anyway

Rather predictably, news of the Gorsuch nomination to the US Supreme Court has been greeted by considerable head-scratching among Democratic Party–and associated progressive–circles: should we fight or should we roll over, keeping the proverbial powder dry for the next battle? ‘Pragmatism’ and ‘realism’ apparently bid us to not fight this already lost battle, to not expend valuable political energy and resources on this skirmish, and to take the long view, the strategic one, the sensible one, so that the next really–I mean, really–important battle can be fought with the appropriate street-fighting intensity and fervor. (After all, if you filibuster, the Republicans will simply change the Senate rules on voting, and just nominate him anyway; give up already.)

Or something like that.

A greater misunderstanding of politics, a poorer read of the current American political situation, cannot be imagined. The Democratic Party rolled over last year to let the Republican Party carry out a wholly illicit refusal to even consider Barack Obama’s nomination of Merrick Garland; it has, thus far, in its responses to Donald Trump’s cabinet nominations performed a passable imitation of a somnolent jellyfish. It seems to care little for the passion and ire of those who are calling upon it to resist the Trump administration; it seems obsessed instead, with performing political harakiri, by refusing to indicate that it has the stomach or the gumption for politics as it is currently performed in America.

Sometimes political battles are fought, not because they will be won, but because fighting them communicates valuable information to those engaged in it. In this case: that the theft of the Supreme Court seat has been noted as such (there is no need for scare quotes around “theft”); that this party has heard its constituents and can be counted on to represent their interests; and so on. Call it virtue-signalling if you like; that is not a pejorative term in this context. Rhetoric is an indispensable component of political struggle; fighting this battle has immense rhetorical value.

Talk of premature exhaustion–before the supposedly great battles that lie over the hill, over the horizon, that will be upon us tomorrow–is premature. Those battles are yet to be fought; there will be time for recuperation and renewal. That recharging of political batteries will be aided by an inspired political base; there won’t be any powder left around for the next battle if your ammunition carriers have, at your refusal to man the ramparts and open fire, thrown their stores down the nearest ravine in disgust, telling all and sundry that their soldiers were a bunch of undisciplined lily-livered no-hopers and do not deserve their allegiance or commitment any more. (These military metaphors are getting out of hand here.)

The nation-wide response to Donald Trump’s cabinet nominations, the visible and loud street protests, the social media coordinated and fueled opposition which has led to an unprecedented number of people calling their elected representatives for the first time, all to make known their unvarnished opinions, has sent the loudest and clearest message possible to the Democratic Party: this nomination must be resisted.

Justice Hugo Black, The Ku Klux Klan, And The Trump Candidacy

In 1914, Hugo Black–a future Supreme Court Justice–was elected solicitor, or district attorney in Birmingham, Alabama. He lobbied to improve prison conditions for both black and whites, and even published a report on coerced confessions. As a trial lawyer, he had successfully represented a black man who had been imprisoned twenty-five weeks beyond his original sentence. But he remained a prisoner of his time and place.

After a stint as district attorney, Black became a personal injury lawyer, and showed himself a master of the racial dog whistle. In one case, he defended a Protestant minister, E. R. Stephenson, accused of murdering a Catholic priest, James Coyle, who had performed the marriage of the minister’s daughter, Ruth, to a Puerto Rican laborer, Pedro Gussman. During his questioning of prosecution witnesses, he asked several of them, “You’re Catholic, aren’t you?” Later, he asked for floodlights to be installed in the courtroom, and had them shone on the decidedly not-white Puerto Rican bridegroom during his testimony, saying that he “just wanted the jury to see that man.” And then, during his closing argument to the jury, many of whom were members of the Ku Klux Klan, Black recited the Ku Klux Klan prayer, “Our father and our God. We, as klansmen, acknowledge our dependence upon Thee.” The jury voted to acquit.

In 1923, Black joined the Klan as a prelude to running for Senate. During his electioneering, Black marched with the Klan and spoke at over a hundred meetings, all the while decked out in Klan robes. He struck many populist and nativist themes in his stump speeches, railing against corporations and income inequality and immigrants. In 1926, he was awarded, and happily accepted, the Klan’s ‘grand passport’ after winning the Democratic Party’s primary. When a clerk asked him why he had joined the Klan, Black replied, “Why, son, if you wanted to be elected to the Senate in Alabama in the 1920s, you’d join the Klan too.”

As Black’s biography shows, racist and nativist populists who rose to power are not unknown in American political history; neither is their skilled deployment of race-baiting techniques and their sounding of dog whistles. The artful politician can invite the sympathy of the working class by concentrating on those issues that address their economic bottom line even as he appeals to their baser instincts by readily finding scapegoats among the usual suspects: foreigners and people of color. Donald Trump has learned his lessons well, even if there is little evidence he burned any midnight oil reading the biographies of Supreme Court Justices. He’s not alone in imbibing these lessons, of course; most of the Republican Party have been diligent students of their dark arts. Trump has just done it better.

And so Trump might yet say to someone who would ask him why, during the election season of 2016, he went on tirades against Mexicans and Muslims, welcomed the support of white supremacists, accused Federal judges of bias, and sought to ban an entire class of immigrants from the nation, “Why son, if you wanted to be the Republican Party’s presidential candidate in the new millennium, you’d been a fascist too!”

Note: This post is cribbed from Jeffrey Rosen‘s The Supreme Court: The Personalities and Rivalries That Defined America (Times Books, New York, 2006, pp. 136-137).

The ‘But The Supreme Court’ Argument For Hillary Clinton

One ‘hold-your-nose-and-vote-for-the-lesser-evil’ argument currently making the rounds for the Hillary Clinton candidacy–ostensibly intended to address the ‘schism’ in the Democratic Party, among the ‘Left’ and ‘progressives’–goes something like this. Vote for Hillary Clinton, even if you disagree with many of her policies, do not consider her entirely trustworthy, and would much rather vote for Bernie Sanders–because she will nominate the right person, the right Justice, to the US Supreme Court. (The Senate will not confirm a nominee put up by President Obama, so this will be one of the first tasks awaiting the new President next year.) No matter what you think, you cannot allow a President Trump to nominate a right-wing ideologue to the Supreme Court, who will then roll back years of hard-won legal victories in many domains: perhaps abortion restrictions, perhaps voting rights, perhaps the power of regulatory administrative agencies to keep our work spaces safe and our drinking water clean.

It is worth noting how much this argument presumes and concedes.

First, and most importantly, the American political system is broken. There is no separation of powers; the judiciary and the executive branch are the new legislatures. The Supreme Court is now a full-blown political institution. Political change will not come about because people’s representatives will legislate their desires and demands into existence; rather, an unelected group of Yale and Harvard educated lawyers will respond directly to petitioners who seek to address some perceived injustice. Persuade the justices; do not bother with the ballot box. Unless you are voting for President.

Second, it places too much faith in the ability of the Supreme Court to drive substantive social and political change. The poster child for this sort of claim is Brown v. Board of Education, which left segregation intact; and as a vigorous debate among professional court watchers–a motley crew of legal scholars and political scientists–confirms, supporting examples can be found quite easily. Despite the expressive impact of the courts and their rulings, political change does not happen because courts direct the polity to change; rather, it occurs because citizens organize and exert pressure at and on the right places and the right actors–in a variety of political domains and institutions.

Third, it suggests–as if acknowledging the unprecedented obstruction of a sitting President by the Republicans over the last eight years–that the President is a lame-duck from the moment he or she drops his or her right hand on being sworn in. No substantive legislation can be driven by that office; the Constitution offers no escape; a recalcitrant House of Representatives and Senate cannot be forced to do perform their legal duties. The President can merely nominate a Supreme Court Justice; and that too before the final year of office (apparently the new normal now given what has transpired since Justice Scalia’s death.)

It is into this impoverished and diminished political landscape that we are steered by the ‘but the Supreme Court’ argument for Hillary Clinton. We are being asked to settle for an immensely diminished Republic.

Mass Incarceration And The ‘Overfederalization’ Of Crime

America’s mass incarceration is the bastard child of many. Among them: racism, the War on Drugs (itself a racist business), the evisceration of the Constitution through ideological interpretive strategies, prosecutorial misconduct, police brutality, and so on. Yet other culprits may be found elsewhere, in other precincts of the legal and political infrastructure of the nation.

In ‘The Balance of Power Between The Federal Government and the States’ (in: Alan Brinkley, Nelson W. Polsby, Kathleen M. Sullivan eds., New Federalist Papers: Essays in Defense of the Constitution, WW. Norton, New York, 1997), Kathleen M. Sullivan writes:

[T]here may be reason for the courts to draw outer limits to federal power when the structural, political, and cultural safeguards of federalism break down and the federal government encroaches needlessly upon areas traditionally and sensibly regulated by the states. The worst example in our recent politics is the overfederalization of crime. The Constitution names only three crimes: counterfeiting coins or securities, piracy on the high seas, and treason. But Congress has created more than three thousand federal crimes under the power to regulate interstate commerce. There are many crimes that should be federal, such as bombing federal buildings or sending explosives through the mail. But should it also be a federal crime to grow marijuana at home or to hijack a car around the corner? Federal crimes have proliferated not because it is good crime policy but because it is good politics: as Chief Justice Rehnquist has observed, “the political combination of creating a federal offense and attaching a mandatory minimum sentence has become a veritable siren song for Congress,” loud enough to drown out any careful consideration of the comparative advantages of state and federal crime control.

Shifting crime control from the states to the federal government in purely local cases diverts the work of federal investigators, prosecutors, and judges from areas of greater federal need. It also fills federal prisons with non-violent and first-time offenders who occupy space that could better be used for violent, career criminals whose operations cross state lines. There is no reason why the new federal crimes may not be handled by the states, as they have been traditionally, unless they involve multistate enterprises or intrastate enterprises so vast as to overwhelm the resources of state authorities.

The federalization of a particular crime acts as a ‘promotion’ of sorts: it elevates the perceived undesirability and dangerousness of the crime; it thus clears the way for harsher sentencing. As Rehnquist’s remark above suggests, the legal system’s response to a particular crime may be viewed as qualitatively and quantitatively inferior till the time it federalizes it and adds a harsh minimum sentence; only such a combination will assuage the retributivist impulse that so seems to animate the punishment policies of our penal system. Moreover, the current state of affairs lends itself to a situation where a conservatively inclined Supreme Court could, under the guise of tilting this balance of power back to the states, strike down progressive legislation. As Martin Garbus noted in Courting Disaster: The Supreme Court and the Unmaking of American Law (Henry Holt, New York, 2002, pp. 128-130) the Supreme Court struck down, precisely as part of an ideological anti-federalist strategy, in United States vs. Lopez“the first United States Supreme Court case since the New Deal to set limits to Congress’s power under the Commerce Clause of the United States Constitution“, an act of Congress criminalizing possession of a handgun at school.

The Supreme Court’s Commerce clause rulings helped unite the nation, but as the history of mass incarceration shows, it has helped create a nation within a nation too, one locked up and discriminated against for life.

 

Antonin Scalia And His Incoherent, Hierarchy-Loving, Theory Of Constitutional Interpretation

I taught Antonin Scalia‘s writings–as found in his court opinions–on three occasions in my philosophy of law class. His theory of constitutional interpretation–originalism–was incoherent. His aggressive rhetoric, directed at those who would dare petition the highest court of the land for redress, was tasteless. He was a bully, and a blowhard. Like Christopher Hitchens, he will be revered by many whose taste runs to the skillful deployment of language for the belittling of others. Among the most frequent targets of scorn were his colleagues on the Supreme Court, who were always unfailingly polite to him, and were rewarded with ample sarcasm and invective. His judgments frequently crushed the weak, denied hope to the condemned (I suspect nothing made Scalia quite as tumescent as denying a stay of execution for someone on death row), and scorned the cries for justice issuing from those who had found themselves on the wrong side of the power equations Scalia found written into the US Constitution.

Because that, in a nutshell, mostly, was Scalia’s theory of constitutional interpretation. Originalism, “the theory of constitutional interpretation that seeks to apply the understanding of those who drafted and ratified the Constitution,” relies on a wholly imaginary “original understanding”–the attempt to determine and ascertain it convinces, all too soon, those who would so try, that the effort is futile. The best analysis of the futility of such a determination may be found in Paul Brest‘s analysis in  The Misconceived Quest for the Original Understanding. Hint: Whose understanding? Do ratification votes capture ‘understanding’ or do they point to clumsy off-stage power negotiations? And so on.

Originalism, as a political theory of legal interpretation, is generally chosen by those who would like to preserve very particular power relations, those present at the time of the drafting of the US constitution. An ‘originalist’ is a fancy term used to describe those who would prefer the world of 1787, and all the limited political and moral understandings that underwrote its legal arrangements. Those original relations, which did not acknowledge or recognize slavery or the political rights of women, eminently suit the continued maintenance and perpetuation of very particular hierarchies of power.

Those are the ones Antonin Scalia wanted to preserve. He was a true-blue conservative, a hierarchy-loving reactionary who shivered when he contemplated the masses rising up –in any shape, form, or fashion. He was no champion of the people; his writings reeked with contempt for them. (I can remember him caring about the voice of the people when pro-life protesters tried to infringe on the constitutional rights of those who wanted to have an abortion.) When all the fancy dressing of the elaborate rhetoric that Scalia deployed was stripped away–in cases that most starkly brought the legally dispossessed into conflict with those well entrenched in power, corporate or state-what always stood revealed was a veneration of power and fury at those who had dared challenge it.

It’s perfectly alright to speak ill of the dead when they were public figures. Scalia sent many to their deaths, he scorned the struggles of those claiming their legal and political rights; I am not upset his tenure on this earth is over.