Category Archives: Supreme Court

The EPA’s Trip To the Constitutional Woodshed

07 Thursday Jul 2022

Posted by in Administrative State, Constitution, Supreme Court, Uncategorized

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The Supreme Court’s regular docket is done for the year, but one of last week’s rulings is of great interest to those concerned about the constitutional threat posed by the administrative state. In West Virginia v. EPA, the Court held that the Clean Air Act of 1970 does not authorize the EPA to regulate carbon emissions in power generation. Well, that’s getting to be a very old statute and no one thought much about carbon dioxide emissions when it became law, so of course it doesn’t! However, this decision is crucial as a check on the ever-growing, extra-legal power of the administrative bureaucracy. I say “extra-legal” because regulatory agencies are increasingly taking it upon themselves to write rules that reach well beyond their legislative mandates. Only the legislature can make law under our system of government, or at least law that settles “major questions”, a doctrine that the Court has applied in this case.

Consequential Side Issues

While many critics of the West Virginia decision might find this hard to believe, it has nothing to do with the Court’s views about the prospects for climate change. That is not the Court’s job and it knows it, or at least most of the justices know it. Even if climate change poses a real threat of global catastrophe, and it does not, that is not the Court’s job. Its primary function is to preserve constitutional law, and that is what this decision is about. (For more on the folly of climate alarmism, see here, here, and here.)

Apart from its constitutional implications, growth in the number of regulatory rules and their complexity also imposes massive costs on the economy, robbing the private sector of productive opportunities, often with little or no demonstrable public benefit. The unbridled promulgation of rules does, however, benefit special interests. That includes bureaucrats, litigators, and private parties who derive side benefits from regulation, such as protection of monopoly status, competitive advantages, and expanded professional opportunities. Leveraging government and political privilege for private benefit is rent seeking at its very heart, and it’s also at the very heart of fascistic corporatism.

A Little History

Regulation has been a channel for rent seeking going back to the earliest days of the Republic and even before. But a Great Leap Forward in federal regulatory intervention came in the late 1880s with several Supreme Court decisions involving railroad rates, and then the establishment of the Interstate Commerce Commission. The railroads practically begged to be regulated. At the last link, Sheldon Richmsn quotes historian Gabriel Kolko:

“The first regulatory effort, the Interstate Commerce Commission, had been cooperative and fruitful; indeed, the railroads themselves had been the leading advocates of extended federal regulation after 1887.”

The railroads wanted stability, of course, and less competition, and that’s what they got, though in the end they didn’t do themselves any favors. Here’s historian Clarence Carson on the ultimate result:

“Since the railroads could not effectively compete in so many ways, such opportunity for improving their situation as existed would usually be to combine roads cover­ing the same general area so as to maintain some control over rates and get as much of the profitable business as possible within an area. This is what rail­road financiers tended to do. The result, as far as the public was concerned, was a nonintegrated rail system, reduced competition, poorer service, and higher rates.”

Later, Woodrow Wilson and Franklin D. Roosevelt had strong roles in advancing the regulatory state. Wilson was smitten with the scientism inherent in centralized decision making and administrative expertise. He was also loath to concede his vision of administrative planning to democratic ideals. Justice Neil Gorsuch, in his concurrence on the EPA decision, offers some rather disturbing quotes from Wilson:

“Woodrow Wilson famously argued that ‘popular sovereignty’ ‘embarrasse[d]’ the Nation because it made it harder to achieve ‘executive expertness.’ The Study of Administration, 2 Pol. Sci. Q. 197, 207 (1887) (Administration). In Wilson’s eyes, the mass of the people were ‘selfish, ignorant, timid, stubborn, or foolish.’ Id., at 208. He expressed even greater disdain for particular groups, defending ‘[t]he white men of the South’ for ‘rid[ding] themselves, by fair means or foul, of the intolerable burden of governments sustained by the votes of ignorant [African-Americans].’ 9 W. Wilson, History of the American People 58 (1918). He likewise denounced immigrants ‘from the south of Italy and men of the meaner sort out of Hungary and Poland,’ who possessed ‘neither skill nor energy nor any initiative of quick intelligence.’ 5 id., at 212. To Wilson, our Republic ‘tr[ied] to do too much by vote.’ Administration 214.”

FDR’s New Deal was responsible for a huge expansion in the administrative apparatus, as this partial list of federal agencies created under his leadership indicates. Many of these agencies were subsequently ruled unconstitutional, but quite a few live on today with greatly expanded scope and presumed powers.

The Great Society policies of Lyndon B. Johnson also created new agencies and programs, with additional burdens on the ability of the private economy to function properly. Of course, the complexity of the administrative state has increased many-fold with more recent actions such as the Clean Air Act and the Affordable Care Act.

Major Questions

The agencies, despite any expertise they might have in-house, cannot create major rules and mandates without fairly specific statutory authorization. That is a constitutional imperative. It’s not quite clear, however, what test might distinguish a “major question” requiring enabling legislation from lesser matters. There is certainly some room for interpretation. According to Kevin O. Leske:

“Under the [major questions] doctrine, a court will not defer to an agency’s interpretation of a statutory provision in circumstances where the case involves an issue of deep economic or political significance or where the interpretive question could effectuate an enormous and transformative expansion of the agency’s regulatory authority.”

Unfortunately, this judicial deference to agency rule-making and interpretation led to further erosion of the separation of powers and due process rights. Vague legislation, aggressive special interests and rent seekers, and judicial deference have allowed agencies excessive latitude to interpret and stretch their mandates, to enforce expansive regulatory actions, and to adjudicate disputes with regulated entities in proceedings internal to the agencies themselves.

At issue in EPA v. West Virginia were the agency’s steps to radically transform the energy mix used in power generation, with potentially dramatic, negative impacts on the public. The Court said that won’t fly unless Congress gives the EPA more specific instructions along those lines. Agency expertise, by itself, is not enough to override the legitimate democratic interests of the public in such consequential matters.

But what about executive actions of the sort increasingly taken by presidents over the years? Why are those legal? Article Two of the Constitution grants discretion to the president for enforcement of laws and managing the executive branch. Furthermore, pieces of legislation can specifically grant discretionary power to the executive branch in particular areas. Nevertheless, it might be possible for even executive orders issued by the president to “go too far” in interpreting congressional intent. That is within the purview of courts in case of legal challenges.

Unaccountable Agency Power

So called “administrative expertise” was given some degree of deference by the Supreme Court as early as the 1930s. In 1947, the Court decided the application of such expertise should often take precedence over pre-established rules. There was also a recognition that legislators often lacked the expertise to formulate certain regulatory guidelines. The expanding scope and complexity of regulations gave rise to increasing legal disputes, however. This strained the judicial system for at least two reasons: the sheer limits of its capacity and the lack of technical expertise needed to settle many disputes. This ultimately led to the adjudication of many disputes within the agencies themselves. Agency tribunals of subject matter experts were formed to meet these growing demands. This was said to facilitate “cheap justice”, not to mention more rapid decisions. The passage of the Administrative Procedures Act in 1947 was a recognition that administrative law was necessary and required certain standards, though they differ from normal judicial standards, such as rules of evidence. This left very little to brake aggressive and extra-legal rule-making and enforcement by the agencies.

Another disturbing aspect of the growth in administrative power has been the advent of agencies said to be “independent” from the other branches of government, as if to intimate their existence as a fourth branch. As Francis Menton (the Manhattan Contrarian) says, agencies:

“… can create rules for your conduct free from the Congress, and … can prosecute you free from the President. In 1935, in a case called Humphrey’s Executor, the Supreme Court upheld the part of the FTC Act that made the Commissioners immune from discharge by the President other than in very limited circumstances. Humphrey’s Executor has not been overruled to this day.

The FTC was only the beginning of an explosion of creation of such ‘independent’ agencies and otherwise un-separated powers in the federal government. The Federal Reserve was created about the same time (actually 1913), and things really took off during Roosevelt’s New Deal, with agencies like the FCC, SEC, and NLRB.”

Later, the Supreme Court adopted a two-part test to determine whether courts may defer to administrative expertise in interpreting legislative intent, rather than substituting their own judgement or insisting on a clearer legislative mandate. This was the principle of so-called Chevron deference, named for the case Chevron v. Natural Resources Defense Council, in which the Court ruled for the EPA’s definition of a “stationary source” of pollution as “plantwide”. The test for Chevron deference was whether an agency’s rule was a “reasonable” statutory interpretation and whether Congress had not directly addressed the point in question.

Rolling It Back

Philip Hamburger, in his book “Is Administrative Law Unlawful?”, addressed the struggle between administrative power and “regular law” back to the days of “royal prerogative”. The advent of constitutional law was designed to prevent anything resembling the latter.

“… administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution―and constitutions in general―were designed to prevent.”

But now we have some very promising developments. Again, in the West Virginia case, the EPA’s authority to regulate carbon emissions in power generation has been denied by the Court, pending any future legislation that would specifically enable that authority. There was no mention of Chevron in this decision whatsoever! That’s a big win for constitutional principle. In another recent case before the Fifth Circuit Court in New Orleans, Jarkesy v. SEC, an administrative law judge (ALJ) at the SEC had assessed damages and fines against Jarkesy, but he challenged the SEC in court, as Menton describes:

“Jarkesy claimed that he was deprived of his Seventh Amendment right to have his case decided by a jury, and also that the SEC had unconstitutionally exercised legislative powers when deciding to try his case before an ALJ without having been given any guiding principles by Congress on how to make that decision. The Fifth Circuit ruled for Jarkesy on both points. This decision has the potential to force some significant changes on how the SEC does business. However, Mr. Jarkesy still does have to continue to run a gantlet that will likely include a request by the government for en banc review by the Fifth Circuit, and then a request for review by the Supreme Court.”

Conclusion

Here is a nice summary of the constitutional issues from an earlier post by Menton:

“… (1) the combining of powers into agencies that would enact, and also enforce, and also adjudicate regulations (directly contrary to the Constitution’s separation of powers into three branches of government); (2) agencies enacting regulations with the force of law on their own say so (contrary to the Constitution’s requirement that all laws be passed by both houses of Congress and presented to the President for signature); and (3) many agencies claiming to be “independent” of the President (contrary to the Constitution’s vesting all ‘ executive power’ in the President).

This is echoed by Jonathan Tobin, who says:

“Government by fiat of intellectuals or scientific experts may or may not be good policy. But it is alien to the U.S. Constitution, and it has nothing to do with democracy.”

One other critical point made by Charles Lipson is that the Court’s West Virginia decision, while sending an unmistakeable message to federal agencies, should also raise awareness in Congress that it is not enough to legislate vague statutes and rely on bureaucrats to make all the decisions about implementation. Instead, “major questions” must be dealt with legislatively and with full accountability to voters. Congress must address these issues, if not up-front, then whenever they arise as disputes in the courts or otherwise. Certainly, the West Virginia decision should make individuals or entities subject to regulatory action less likely to allow major questions to be settled by ALJ rulings within the agencies themselves. The Supreme Court has expressed a willingness for such cases to be reviewed in normal courts of law. That is a very positive development for liberty.

Three Justices Reveal Astonishing Covid Ignorance

10 Monday Jan 2022

Posted by in Coronavirus, Supreme Court, Vaccinations

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Good God! What a remarkable display of ignorance we witnessed on Friday from three different Supreme Court justices. This trio dumped buckets-full of erroneous information about the current state of the COVID pandemic, all points that are easily falsifiable. The three are Sonia Satamayor, Stephen Breyer, and Elena Kagan. The flub-fest occurred during a proceeding on challenges to OSHA’s attempt to impose a nationwide vaccine mandate on private employers having more than 100 employees. I’m sorely tempted to say these jurists must know better, but perhaps they were simply parroting what they’ve heard from “reliable” media sources.

Here’s a list of the false assertions made by the three justices at the hearing, as compiled by Michael P. Sanger, along with my own brief comments:

  • 100,000 children in critical care and on ventilators (Sotomayor) — Not even close!
  • Vaccine mandate would prevent 100% of US cases (Breyer) — Lol!
  • 750 million people tested positive last Thursday (Breyer) — That’s more than twice the U.S. population… in one day! Haha! See here.
  • COVID deaths are at an all-time high (Sotomayor) — No, they are well under half of the all-time high, and many of those “announced” deaths are Delta deaths and deaths that occurred weeks to months ago.
  • It’s “beyond settled” that vaccines and masks are the best way to stop the spread (Kagan) — Say what?
  • COVID vaccines stop transmission (Kagan) — Is that why two fully vaccinated attorneys arguing the government’s case just tested positive?
  • Federal agencies can mandate vaccines using the police powers of the federal government (Sotomayor) — Incorrect, not at their fancy. Police powers with respect to health, safety and morals are generally reserved to the states by the Tenth Amendment. The Commerce Clause allows Congress to regulate these powers through federal agencies on “major questions”. Congress, however, has never acted on the question of vaccine mandates.
  • Hospitals are nearing capacity (Sotomayor) — Again, no! And see here.
  • Omicron is deadlier than Delta (Sotomayor) — Omicron may be more severe than the common cold in some cases, but all indications are that it has much lower severity than the Delta variant.
  • Hospitals are full of unvaccinated people (Breyer) — No, on two counts: 1) hospitals are not full, and 2) there are COVID hospitalizations among the vaccinated as well. Also see here.

I’ve covered most of these points on this blog at various times in the past, a few links to which are provided in the bullets above. As one wag said, it’s almost as if these justices read nothing but the New York Times, the paper that once assured the world that Joseph Stalin was actually a pretty decent fellow. With tongue firmly in cheek, Ed Morrissey asked whether Twitter would suspend Justice Sotomayor for spreading COVID misinformation.

There also followed a desperate attempt by left-wing journalists to convince themselves and their followers that Justice Neil Gorsuch had incorrectly claimed hundreds of thousands of people die from the flu every year. The actual Gorsuch quote in the transcript reads:

“Flu kills—I believe—hundreds, thousands of people every year.”

And that indeed is what can be heard clearly on the audio (short clip here). But in the fertile imaginations of the lefty commentariat, Gorsuch uttered an extra “of”. Gorsuch was clearly correcting himself mid-sentence. As noted by Phil Kerpen, the line of questioning had to do with the establishment of a limiting principle under which OSHA could conceivably have authority to impose a vaccine mandate. Naturally, Gorsuch intended to quote a number smaller than the count of COVID deaths.

Most of the justices appeared to lean against the OSHA mandate. We’ll probably get a ruling this week. However, the episode vividly illustrates the power of the leftist mainstream media and social media to manipulate beliefs, even beliefs held by individuals of formidable intellect. It also shows how fiercely people cling to falsehoods supporting their ideological mood affiliations.

Atheism Cannot Disqualify for Public Office

26 Saturday Sep 2020

Posted by in Supreme Court

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Amy Coney Barrett makes a lousy target for personal attacks by the Left. Barrett is President Trump’s nominee for the Supreme Court vacancy following the death of Justice Ruth Bader Ginsburg. A fabricated scandal against Barrett would be much less credible than even the allegations made against Bret Kavanaugh at his confirmation hearings in 2018. So Democrats believe their best opportunity is to paint Barrett as a religious “crazy” who, if confirmed by the Senate, will allow her religious convictions to influence her opinions on the Court relative to issues such as abortion rights under Roe v. Wade.

Barrett has offered rejoinders to Senator Diane Feinstein’s comments (“The dogma lives loudly within you.“) at the hearings on Barrett’s appointment to the Federal Appeals Court in 2017. In particular, Barrett has noted that a religious test is unconstitutional as a criterion for public office, including judgeships. In fact, in another way, Barrett has demolished the claims made by leftists against the qualifications for the bench of those of deep faith. Her argument exposes the Leftist position as an absurdity.

The presumption is that someone having religious convictions has a certain set of moral principles that might be brought to bear on court decisions. We’re expected to believe that’s a danger unique to those of faith. Barrett notes that non-religious individuals, even atheists, have their own set of moral principles. By the same standard, should we not concern ourselves that an atheistic nominee might bring their moral principles to bear on court decisions? Or are we to believe those principles are somehow superior to those associated with religious convictions? That they should simply be overlooked, but not for those of religious faith? Rather, a fundamental requirement is whether a nominee understands and respects the difference between jurisprudence and legislating from the bench, a distinction that was sometimes lost on Ginsburg.

To assert that an atheist’s moral convictions are more objective than those of a religious individual is a flaw in logic and a horrific value judgement. I am not a particularly religious person, but I respect people of faith as well as the protections afforded to the free practice of religion by the First Amendment of the U.S. Constitution. It’s worth noting that those protections apply to atheists as well as religious sects. As Barrett’s position implies, to distrust the judicial judgement of a person of religious faith is as wrongheaded as to distrust the judicial judgement of a nominee devoid of religious faith.

Nominate and Confirm

23 Wednesday Sep 2020

Posted by in Supreme Court

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Many on the left practically cheered the passing of Antonin Scalia in 2016, a reaction I witnessed with disgust on my own social media feeds. Now, we should all mourn the death of Ruth Bader Ginsburg, but some of the same people seem almost comically furious with her for “choosing such a bad time to die”, just 46 days before the presidential election! Or, for refusing to step down during the Obama administration, when she could have been replaced with a much more youthful lefty jurist.

Of course, the Left is also furious that President Trump plans to nominate a candidate for Ginsburg’s vacancy on the Court, and that Republican leadership in the Senate plans to bring the nomination to a vote, perhaps before November 3rd.

Trump and the GOP majority are entitled to do that under the Constitution, and they should. Senator Ted Cruz explained the primary reason:

“Democrats and Joe Biden have made clear they intend to challenge this election. They intend to fight the legitimacy of the election. As you you know Hillary Clinton has told Joe Biden ‘under no circumstances should you concede, you should challenge this election.’ and we cannot have election day come and go with a 4-4 court. A 4-4 court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of … a contested election.” 

This presidential election might be fraught with more procedural controversy than any before. The coronavirus, or its promoters in the media and the Democrat party, has spooked many voters into the belief that going to a polling place in-person on Election Day is too dangerous. This despite the fact that distancing and masks will be required, and the time it takes to complete a ballot does not require “prolonged exposure” to anyone. So now we face the prospect of mail-in balloting on an unprecedented scale, which is an invitation to manipulation and fraud. A couple of examples:

“… consider some of the suspect decisions already being made in various states that deliberately weaken ballot security. The Pennsylvania Supreme Court, for example, voted last week along party lines (the judges are elected) that county drop boxes, including unattended ones, could be used to collect votes. Gov. Tom Wolf, a Democrat, and his party supported the measure, which reached the court by lawsuits, thus avoiding GOP control of both legislative chambers. The decision obviously opens the door to potential fraud because ballots in unsecured drop boxes could be tampered with or stolen. 

New Jersey’s Democratic Gov. Phil Murphy also made some curious decisions. A Jersey friend sent me a mailer he received that was addressed only to ‘Residential Customer.’ Inside, a pamphlet from the county clerk in Bergen County said that a Murphy order ‘requires’ every county to mail a ballot to ‘every active registered voter.’ That raises the chances of thousands of unmarked ballots being stolen from the post office or front porches, practices not exactly unheard of in New Jersey.”

Already a number of lawsuits have been filed in various states over absentee ballots. There have been missed deadlines, disputes over whether certain candidates should appear on those ballots, invalidated pre-filled applications for ballots, and an incorrect mailer sent by the U.S. Postal Service to voters nationwide regarding absentee ballots. Let’s face it: for all the earlier denials by Democrats that the mail-in ballot process was not subject to gaming or fraud, neither side trusts the other. There will be many more disputes as ballots are counted before and after Election Day.

It’s reasonable to expect that a few cases might rise to the level of the U.S. Supreme Count before election tallies are final in some states, as in the Florida recount in the Bush vs. Gore election of 2000. A 4 – 4 tie on the Court would leave lower, state-court rulings in place that could decide the outcome of a federal election. That’s not how the process is intended to work. Needless to say, that’s another reason why Democrats oppose a Trump nominee prior to the election. There’s no doubt they’d push forward with their own nominee were the shoe on the other foot, however, just as Republicans opposed the confirmation of Merrick Garland in 2016.

So who’s a hypocrite? Republicans who said that they wouldn’t confirm or even conduct a confirmation process in an election year, as in 2016, certainly qualify (Lindsey Graham, among others). It must have seemed expedient to stay so at the time, but it was foolish. And Democrats who now protest after insisting in 2016 (and before) that a Supreme Court vacancy should be filled by the sitting president, even in an election year, also qualify (Chuck Schumer, Barack Obama, Hillary Clinton, and Joe Biden, among others). Here’s what some top progressive legal minds were saying in 2016: It’s a duty and obligation for the president to nominate and for the Senate to undertake a confirmation process!!

Here’s the key issue: The president has the authority to nominate Supreme Court justices any time during his term. If the Senate confirms, then a new justice is seated. If the Senate chooses not to confirm, the vacancy remains. That’s how it works. There have been 29 vacancies on the Court in election years, and in 22 of those cases the sitting president sent a nomination to the Senate. As Justice Ginsburg said in 2016:

“There’s nothing in the Constitution that says the president stops being the president in his last year.”

Her purported wish on her death bed, that her replacement would be chosen by a new president, was not hypocritical. It was a wish, not a legal opinion. It was just as “political” as the contradictory statements made by the politicians, however.

Ginsburg also said it’s the Senate’s job to take up a vote, which the Republicans refused to do in 2016. That was their prerogative, however, and the decision does not bind anyone in the current circumstance.

Mitch McConnell is right:

“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year. By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”  

Democrats have promised to “pack the Court” by adding seats to the bench for new, ideologically-preferred justices if a Trump nominee is confirmed, among other threats. They should heed the caution of moderates who know how dangerous that may be. The mere threat gives Republicans reason to pack the Court themselves, when they can, which might be as soon as January. Moreover, nothing could do more to undermine confidence in the Court. RBG herself had the following to say about Court packing:

“Well, if anything, it would make the court appear partisan. It would be that one side saying, ‘when we’re in power, it was only to enlarge the number of judges so we will have more people who will vote the way we want them to…’ So I am not at all in favor of that solution to what I see as a temporary situation.”

Well, of course the Court is divided along certain ideological lines, and to some extent those differences break along dimensions of legal philosophy, such as originalism vs. a “living Constitution”, or judicial activism. That’s not to say that the Court is always partisan, however. The process of nominating and confirming justices should not be as partisan as it has become in the last 25 years (see the last link). Let’s not make it worse.

Trump will nominate an able jurist. Senators should meet and independently assess that individual’s legal qualifications and temperament. My expectation is they will vote to confirm, and I hope that vote takes place without rancor.

Note: Thanks to the Washington Free Beacon for the wonderful meme at the top of this post.

The Court and Kavanaugh

08 Monday Oct 2018

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There are both great and hysterically negative expectations for Brett Kavanaugh’s seating on the Supreme Court, depending on one’s perspective. The changes are likely to be much less dramatic than many think, however, according to Glenn Reynolds in his Sunday column. As he says, most cases before the Supreme Court are decided by easy majorities, and that won’t change. On split decisions, Kavanaugh will be less of a “swing vote” than Anthony Kennedy, no doubt, and he will have influence over the choice of cases to be heard by the Court because the selection of a case requires only four justices.

Reynolds thinks Kavanaugh is not as conservative as partisans hope or fear. For example, Reynolds believes he is unlikely to vote to overturn Roe vs. Wade, when and if that question comes before the Court. There may be shifts on narrower questions, such as an earlier definition of fetal viability (in recognition of improved medical technology) and greater protection against arrangements that facilitate illegal funding of abortions by federal taxpayers. Reynolds acknowledges, however, that Kavanaugh is a stronger advocate of Second Amendment rights than Kennedy, so those protections are less likely to be eroded.

Reynolds’ also notes a shift that is likely to take place in legal academia:

“Strange new respect for judicial minimalism. As Harvard Law professor Adrian Vermeule remarked, ‘Law review editors: brace for a tidal wave of legal academic theories supporting judicial minimalism, Thayerianism, and strong — very strong — theories of precedent. Above all: the Court must do nothing without bipartisan agreement, otherwise it is illegitimate.’ The past half-century’s enthusiasm for judicial activism will vanish, as legal academia turns on a dime to promote theories that will constrain the court until a left-leaning majority returns, at which point they’ll turn on a dime again.”

That is all too likely. My liberal friends insist that the four justices on the left are free of political bias. Don’t laugh! I’ll be happy if Kavanaugh, as a justice, sticks to his traditional originalist philosophy on constitutional interpretation. I’m under no illusion that the left side of the bench takes the original meaning of the Constitution seriously.

My own concerns about Kavanaugh have to do with his earlier work in the Bush White House on issues related to national security, including work on the PATRIOT Act. In fairness, that work took place at a time when the horrors of 9/11 were still fresh in our minds. However, years later he wrote a favorable judicial opinion on metadata collection by the government. It’s disturbing that Kavanaugh has ever shown a willingness to relinquish the rights to privacy and due process as a routine matter of national security. The founders’ intent was to protect individual rights from the threat of tyranny, so they expressly limited the power of government through the Constitution. Those who would claim that threats to national security are so compelling as to supersede individual rights are perhaps the very tyrants the Constitution was meant to foil. Nevertheless, my hope is that Kavanaugh, having come face-to-face with those who would prefer to deny privacy and due process rights when it suits them, has gained additional respect for these protections.

Can Dems Keep a Straight Face Through Thursday?

21 Friday Sep 2018

Posted by in Defamation, Sexual Predation, Supreme Court

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A political party that wants voters to give them control of Congress also wants you to believe that a man is guilty until proven innocent; that presumed guilt is contingent on gender and race; and that sitting on accusations until the midnight hour is not a manipulative, politically-motivated stunt. With all due respect to victims of sexual predation from both genders (oops, perhaps I should have said all genders), the allegations and smears against Brett Kavanaugh smack of political motivation, and you can bet Kavanaugh’s detractors are proud of it.

First there was Professor Christine Ford’s allegation about an assault 36 years ago at a party that no one remembers, including her. Then there are the cloudy and shifting recollections of Deborah Ramirez about a dorm party at Yale 35 years ago at which she thinks Kavanaugh exposed himself as part of a drinking game, but no one else seems to recall that event either. In fact, it’s reported that Ramirez was not going forward with the claim until she was sought out by congressional Democrats. And then there is Michael Avenatti, the cartoonish attorney for porn star Stormy Daniels, who says that Kavanaugh and a buddy, Mark Judge, regularly drugged women and arranged for “trains” of men to rape them. Avenatti now says one such woman will come forward within 48 hours. Perhaps she’s still negotiating her deal with Avenatti. Why, you could almost get the idea that Democrats are actively recruiting accusers.

Here’s what Charlie Martin said:

“Okay, so we’re up to Kavanaugh and Mark Judge supposedly pimping out drug-addled high school girls to pull a train with classmates without anyone mentioning it for 36 years. Do the accusations of Satanic abuse and child sacrifice hold off until Wednesday, do you think?”

Ford claims that Judge Brett Kavanaugh, 36 years ago as a teenager, sexually abused her at a high-school party while his friend, Mark Judge, watched. She claims Kavanaugh pushed her down on a bed, groped her, attempted to remove all or part of her one-piece swimsuit, and placed his hand over her mouth to silence her protests before Master Judge piled on top, causing the three to fall off the bed and allowing her to escape from the room.

Democrats say this allegation should keep Kavanaugh off the Supreme Court or delay any vote on his appointment until after a full investigation by the FBI. Let’s review some facts in the case:

  • Ford can’t recall a specific location, how she got there or how she got home, how she wound up in the upstairs bedroom with the two boys, the name of the party’s host, or more specifics about the date of the alleged assault.
  • Ford says she never told anyone about the incident until years later when she revealed it to a therapist, whose notes say there were four people in the room and do not mention Kavanaugh.
  • The allegation was made by Ford in a letter to Senator Diane Feinstein on July 30, five weeks before the Senate Judiciary Committee held hearings on Kavanaugh’s nomination to the Court. Feinstein did not mention the letter during the hearings. She revealed it’s existence just a few days before a scheduled Committee vote on the Kavanaugh nomination, six weeks after her receipt of the letter. Feinstein has refused to reveal the unredacted contents of Ford’s letter to the Judiciary Committee.
  • Kavanaugh has denied the allegation and says that it could be a case of mistaken identity. Kavanaugh’s friend Mark Judge denies that the incident took place.
  • Ford named two other individuals as potential witnesses who could place both Ford and Kavanaugh at the party in question. Both have stated that they are unable to do so. The first, another male friend of Kavanaugh’s, released a statement praising Kavanaugh’s integrity. The second, a woman, stated that she does not know Kavanaugh and is unable to place the two at a party together. That’s a total of three witnesses who say they didn’t witness anything.
  • Some 200 alumni of Ford’s private all-female high school wrote a letter in support of Ford, but many of them are not even contemporaries of Ford and Kavanaugh.
  • Some 65 women who knew Kavanaugh during his high school years have signed a letter vouching for his character; a number of college and law school classmates as well as high-profile female attorneys who have worked with (and for) Kavanaugh have publicly stated their support and vouched for his integrity.
  • Originally, Ford and Kavanaugh both agreed to appear before the Judiciary Committee on Monday, Sept. 24; the vote on Kavanaugh’s nomination was delayed a week. Subsequently, Ford stated that she would not appear before the Committee until the FBI had completed an investigation of the incident.
  • The charge would not be a federal crime, so the FBI declined to investigate.
  • Later, she expressed a willingness to appear under the right conditions, but not as soon as Sept. 24; only questions from Senators; Kavanaugh cannot be in the same room; and Kavanaugh must go first.
  • After a week of repeated requests through Ford’s attorneys and several “deadlines” set by the Committee Chairman, it now appears that the hearing will take place on Thursday, Sept. 27, but the terms have not been fully settled.

I think the Committee Chairman, Chuck Grassley, got played in accepting the delays. It allowed the Democrats to raise these unprovable accusations in a campaign against Kavanaugh in the media. It also invited the very bandwagon effect of unfounded accusations we are now witnessing, as the underhanded effort to block Kavanaugh’s appointment began to bear additional fruit.

The alleged crime occurred when both Ford and Kavanaugh were minors (Ford was 15, Kavanaugh 17). The statute of limitations applicable to minors in the state of Maryland, where the alleged incident occurred, is three years or until the “injured party” reaches the age of majority. It is therefore too late for Ford to file criminal charges against Kavanaugh. The statute of limitations is reasonable to the extent that teenagers do a great many stupid and harmful things for which they should not necessarily be held responsible as adults. Sexual aggression, if proven, may well cross a line depending on its character and severity, but from a legal perspective that line is determined, in part, by the victim’s determination to bring charges at a time when the charges can reasonably be investigated. Ford did not bring them, and she did not so much as mention them to anyone for about 30 years.

Ford has been involved in some left-wing activism, but her social media profile was  scrubbed before the allegations went public. Her attorney, Debra Katz, has been a prominent member of the MeToo movement. This has, quite naturally, contributed to suspicions that the entire matter is a political stunt. That’s reinforced by Feinstein’s delays in making the matter public, Feinstein’s refusal to release Ford’s letter without redactions, and by the repeated delays in Ford’s commitment to testify before the Committee. In fact, Ford claimed that she cannot appear before the Committee until late next week because she must drive from the west coast to Washington, DC. That’s because Ford says she has a fear of flying and “closed spaces”. Not only that, these fears originated with Kavanaugh’s alleged attack. Just wow! The author at the last link wonders whether Ford took a boat to her internship in Hawaii a few years ago, avoided elevators for 36 years, or perhaps managed her issues with medication.

Ford’s high-school yearbooks were available on-line until just a few days ago, when they were suddenly taken down by the affluent private girls school she attended. The yearbooks do not reflect directly on Ford. They are, however, a bit surprising because they were presumably overseen by faculty, and yet they celebrated heavy drinking and the joys of blacking out, promiscuity, and they even contained hints of racism. The fact that the yearbooks were suddenly removed from the internet reflects on Ford’s defenders, who must have felt that the books would damage her credibility.

Again, the terms of the hearing involving Ford and Kavanaugh are still up in the air. Ford’s insistence that Kavanaugh should testify to the Committee prior to her is contrary to the normal procedure in any case involving criminal charges. The Senate follows the same rules. Putting Kavanaugh in a different room would deny him his right of habeas corpus. The Committee chairman has also suggested that questioning would be handled by a female attorney. Given these differences, it is far from certain that Ford will ever appear before the Committee.

The letter to Feinstein, as it turns out, was drafted by Ford at the senator’s request after Ford had first consulted her congresswoman, Anna Eshoo, earlier in July. The redacted portions of that letter are of interest. After all, they may either bolster or weaken the credibility of the charges. However, if there are allegations in the letter that are false, and if they were revealed to the Committee, it would expose Ford to criminal charges and imprisonment. Could this be why the full letter has been withheld by Feinstein?

However much we might desire justice for victims of sexual abuse, and however much we might sympathize with a victim’s emotional difficulties attendant to such an attack,  those matters cannot be used to deny the due process rights of an accused. Society cannot simply take an accuser’s “word for it”, especially when the accuser declines to take action within a reasonable period of time, one within which evidence and testimony might be gathered effectively. While the evidentiary standards in a criminal proceeding might be more stringent than in assessing an accused individual’s fitness for high office, mere late-hour assertions are not adequate when the record, as in Judge Kavanaugh’s case, is so exemplary, and when there is absolutely no corroboration. Indeed, it is dubious to raise serious allegations of this nature when they are unprovable, and only when the alleged attacker is due to receive a prominent appointment of some kind. Ford’s allegation, and the others, have all the earmarks of a politically-motivated smear campaign.