Courts – R&R – Reachout and Rebuild

Assault on America

David Posnett — Thu, 17 Dec 2020 19:33:38 +0000

Democracy has taken a beating during the past four years. From the day Trump was sworn in, the moral yardstick we use to measure presidents by morphed into a moral slide rule, constantly adjusted by obsequious Republicans anxious to cover for the lies Trump spewed nearly every time he opened his mouth. We’ve been inching our way toward this crisis ever since.

And now, when Americans handed Donald Trump a resounding seven-million-vote defeat, Trump is doing what he has done his entire life — threatening friends and enemies alike to do his bidding and flooding the courts with frivolous cases. The lawsuit filed by Texas, a mixed salad of lies, debunked claims, and crackpot conspiracy theories that had already been rejected by state and local courts, was a frightening attempt to have the Supreme Court throw out the legal votes of 20 million people in four states.

Lee Zeldin joined in on the assault on America, signing a brief backing the lawsuit, along with 125 of his fellow House Republicans. That so many in the Republican Party have revealed themselves to be willing to steal a presidential election is a warning to us all: American democracy may still be standing, but it is on very shaky ground.

Sincerely,

CAROL DEISTLER

Printed as Letter to the Editor, The East Hampton Star, December 17

The Days After Election Day

David Posnett — Sat, 31 Oct 2020 15:30:32 +0000

As our democracy hangs by a rapidly fraying thread, it is critical that each of us do everything we can to ensure that Donald Trump is voted out of office, and once voted out of office, that he actually LEAVES office.

“The Day After Election Day,” https://www.nytimes.com/2020/10/30/opinion/trump-election-officials.html?action=click&module=Opinion&pgtype=Homepage an article in The New York Times, is an account of officials and aides who are worried the president will use the power of the government to keep himself in office. Following are highlights (lowlights is probably a more accurate term) from the article for those who can’t access it:

“Even though they can’t predict exactly what will happen, their concerns range from the president welcoming, then leveraging, foreign interference in the election, to encouraging havoc that grows into conflagrations that would merit his calling upon U.S. forces.

“I think the biggest shock he had — ’cause his assumption was the generals, ‘my generals,’ as he used to say and it used to make us cringe — was he …just assumed that generals would be completely loyal to the kaiser….And when we weren’t, that was a huge shock to him….

“This shock, and his first two-plus years of struggle with seasoned, expert advisers, led to an insight for Mr. Trump. It all came back to loyalty. He needed to get rid of any advisers or senior officials who vowed loyalty to the Constitution over personal loyalty to him. Which is pretty much what he proceeded to do.

“….Having loyalists at both the Department of Justice and D.N.I….allows him, potentially, to coordinate two key agencies of the government — secret intelligence and prosecution — toward his own political ends.

“Key officials in several parts of the government told me how they thought the progression from the 3rd to the 4th might go down.

“…Disruption would most likely begin on Election Day morning somewhere on the East Coast, where polls open first….A group could just directly attack a polling place, injuring poll workers of both parties, and creating a powerful visual — an American polling place in flames, like the ballot box in Massachusetts that was burned earlier this week — that would immediately circle the globe.

“Violence and conflict throughout that day at the polls would surely affect turnout, allowing Mr. Trump to claim that the in-person vote had been corrupted….There are many scenarios that might unfold from here, nearly all of them entailing weeks or even months of conflict, and giving an advantage to the person who already runs the U.S. government. There will likely be some reckoning of the in-person vote drawn from vote tallies and exit polls. If Joe Biden is way ahead in these projections…Mr. Trump may find himself having to claim fraud or suppression that amounts to too large a share of votes to seem reasonable. Inside the Biden campaign they are calling this “too big to rig.

“No matter how the votes split, there’s an expectation among officials that Mr. Trump will claim some kind of victory on Nov. 4, even if it’s a victory he claims was hijacked by fraud….If the streets then fill with outraged people, he can easily summon, or prompt, or encourage troublemakers among his loyalists to turn a peaceful crowd into a sea of mayhem.

“…But across the government, another official argues that citizens may yet manage to rise to the challenge of this difficult election, in a time of division.

“The last line of defense in elections is the American voter,” he told me. “This is the most vulnerable phase,” now and the days immediately after Election Day, “where we’re so eager to have an outcome, that actors both foreign and domestic are going to exploit that interest, that thirst, that need for resolution to the drama.”

And there you have it. The days and weeks after the election are likely to be a referendum – not on Donald Trump, but on each and every one of us. When everything is on the line, it’s time to do everything you can. Stay tuned.

Voters Should Not Be Intimidated

David Posnett — Fri, 09 Oct 2020 13:43:45 +0000

Submitted by Francesca Rheannon:

There are strict limits on what the military, law enforcement, and private militias or other vigilantes can do at the polls.https://www.brennancenter.org/our-work/research-reports/voters-should-not-be-intimidated

By Sean Morales-Doyle ,

From The Brennan Center

Last Updated: October 7, 2020 Published: October 6, 2020

As Election Day nears, President Trump has increasingly threatened to instigate voter intimidation. First, he has insinuated that he will deploy law enforcement officers or call up the National Guard to root out election-related crimes at the polls or call up the National Guard. (Spoiler alert: voter fraud is vanishingly rare). The president has abused his authority over law enforcement before, most notably when he deployed federal agents — and threatened to deploy the military — in response to domestic protests earlier this summer.

On top of this, in the first nationally televised presidential debate the president called for his supporters to “go into the polls and watch very carefully,” especially in Philadelphia. The Republican National Committee (RNC) claims to be gearing up for an aggressive “ballot security” operation involving 50,000 poll watchers, which many worry could include plans to intimidate voters. In 2017 a court freed the RNC from a 35-year-old consent decree that required the committee to obtain judicial approval of any such operations to ensure that they would not illegally intimidate or discriminate against voters or interfere with their right to vote.

There is a shameful history in parts of the country of armed officers, on duty or off, targeting Black voters and other voters of color for intimidation. Their mere presence in polling places could raise reasonable fears among groups that are frequently the target of racial profiling and police misconduct.

But the law is crystal clear: it is illegal to deploy federal troops or armed federal law enforcement officers to any polling place. State and local laws and practices place limits on the role of law enforcement and poll watchers. And a host of federal and state laws, many of which also carry severe criminal penalties, prevent anyone — whether a law enforcement officer or a vigilante — from harassing or intimidating voters.

The U.S. Military

Bottom Line: It would be illegal — and in many cases a federal crime — for the president to deploy the military to interfere with the election.

The Concern: President Trump has threatened to deploy the military to U.S. cities in response to protests; these threats have often been linked to his partisan attacks on Democratic mayors and governors. Although Trump has not explicitly said he would deploy troops to the polls, his threats to send in law enforcement echo his recent response to those protests. These threats, and Trump’s politicization of the military in other contexts, recently prompted two members of Congress to ask Chairman of the Joint Chiefs of Staff Mark Milley whether he would obey an order to send active duty military to polling places.

Why It’s Illegal: Any deployment of troops or other armed federal agents to a polling place is a federal crime (unless the country is literally being invaded). The law, which dates back to 1948, says:

Whoever, being an officer of the Army or Navy, or other person in the civil, military, or naval service of the United States, orders, brings, keeps, or has under his authority or control any troops or armed men at any place where a general or special election is held, unless such force be necessary to repel armed enemies of the United States, shall be fined under this title or imprisoned not more than five years, or both; and be disqualified from holding any office of honor, profit, or trust under the United States. footnote1_pbthrbt 1

Other federal statutes also prohibit the military from interfering in our elections. footnote2_9e40ia2 2 And the Posse Comitatus Act of 1878 bars troops from being deployed on U.S. soil generally. footnote3_kdryp8q 3 There are exceptions to the law that Trump has tried to exploit, but they do not allow him to circumvent the explicit prohibition on using the military to interfere in elections.

In short, the president cannot deploy the military for any purpose connected to an election. The military knows this. A 2018 Defense Department directive confirms that military personnel “will not conduct operations at polling places.” footnote4_4asq9ar 4 Likewise, when asked by the two members of Congress whether he would send troops to polling places, General Milley made clear, “I do not see the U.S. Military as part of this process.” Any officers who try to cross this line could be prosecuted.

The Department of Homeland Security

Bottom Line: As with the military, it would be a crime for the Department of Homeland Security (DHS) to deploy any of its agents — including those from the Federal Protective Service, Customs and Border Protection, and Immigration and Customs Enforcement (ICE) — in connection with an election.

The Concern: Over the summer, in response to civil unrest accompanying the wave of peaceful protests that followed the murder of George Floyd, the Trump administration recklessly deployed agents from the Federal Protective Service and Customs and Border Protection to Portland, Oregon, and other U.S. cities over the objections of state and local officials (a number of whom have filed lawsuits that are pending in federal court). The administration claimed that the agents had been deployed only to protect federal property, but they allegedly assaulted protesters and carried out arrests far from federal buildings. This history, coupled with the president’s recent threats, raises understandable fears that DHS forces might be deployed to intimidate voters.

False rumors are also now spreading about plans for ICE agents to patrol the vicinity of polling places and even arrest voters they suspect of being undocumented. Some of these rumors appear to have come from groups that are intentionally trying to suppress the vote among Latinos and other people of color. These rumors create real fear in communities ICE has targeted with increasingly aggressive tactics.

Why It’s Illegal: Any deployment of DHS agents in the vicinity of a polling place or any place where votes are being counted would violate the same criminal statute that applies to all armed federal officers. The Department of Justice’s own election crimes manual confirms that the statute bars any armed federal agent from election sites. footnote5_a81tngb 5 Indeed, when asked about the president’s threat to send agents to the polls, the acting head of DHS responded point-blank: “We don’t have any authority to do that at the department.”

It is also illegal for anyone to intimidate or threaten voters, disenfranchise voters, or target voters based on their race or ethnicity — federal agents included. The use of federal agents to intimidate voters is a crime under section 11 of the Voting Rights Act of 1965 (VRA). footnote6_kr4w7zk 6 Courts have held that the law forbids tactics such as following alleged suspects, recording license plate numbers, and brandishing weapons. footnote7_ojs1pyq 7 The consequence for an intentional violation? Up to five years in prison. footnote8_zt6hq83 8

Federal law also makes it a crime for people (including government officials) to conspire to deprive someone of the right to vote or the right to be free from discrimination. footnote9_eg4sn4p 9 For this offense, violators face up to 10 years in prison. The Constitution too prohibits government officials (including ICE and other federal agents) from targeting voters of color for enforcement actions. footnote10_sd5sjdy 10

Even aggressive DHS operations unconnected to an election may be out of bounds during the election. The Constitution limits otherwise legal federal law enforcement activities if they interfere with areas of fundamental state concern. For example, federal courts have blocked ICE agents from entering state judicial facilities to arrest undocumented immigrants because it disrupts states’ ability to operate their own court systems. footnote11_t4jfary 11 The same logic would bar operations by ICE (or other parts of DHS) that could significantly interfere with a state’s ability to conduct a free and fair general election. footnote12_cq1hexe 12

The Department of Justice

Bottom Line: At the polls, the Department of Justice (DOJ) is limited to observing elections for compliance with federal voting rights laws for subsequent enforcement efforts. It cannot interfere with the voting process or send agents to investigate other laws.

The Concern: Attorney General Barr, who has frequently repeated the president’s lies about purported voter fraud, has asserted the right to send DOJ agents to the polls for a variety of reasons, including to investigate potential election crimes. His statements, coupled with the president’s own threats to have U.S. attorneys at the polls, have led to fears that Trump and Barr will seek to use DOJ’s authority to meddle in the election.

Why It’s Illegal: DOJ is subject to the same restrictions as other federal agencies, including the absolute bar on deploying armed agents to polling places or other locations where an election is being held. As the department’s own election crimes manual states, prosecutors have “no authority to send FBI special agents or [U.S. marshals] to polling places.” footnote13_2dadkyu 13 Even investigative activities anywhere near polling places require special permission. footnote14_o5e05w5 14

In short, Attorney General Barr, to the extent that he is asserting a right to deploy armed agents to the polls or other election-related sites while voting is ongoing, is simply wrong. If he did try to send armed agents to polling places during an election to investigate potential crimes or “enforce civil rights” (two pretexts he’s mentioned), he would be committing a federal crime. Legitimate election crime investigations should be conducted only after voting is complete, as typically happens, including most recently in the wake of revelations of absentee ballot tampering by a GOP operative in a 2018 North Carolina congressional race. Election Day disturbances should be handled by state officials.

While armed DOJ agents are not allowed at the polls, the department may under certain circumstances send unarmed representatives under its election observation and monitoring programs. These unarmed civilian federal employees are tasked only with observing and monitoring voting processes for compliance with the federal Voting Rights Act and the Help America Vote Act and reporting back to a court or DOJ’s Civil Rights Division. footnote15_9h3i7qb 15 They have no power to enforce the law. footnote16_6wy6jf0 16 In fact, monitors do not even have the authority to enter polling places without permission from state or local election officials. footnote17_76gi9yx 17 The federal observer program, which was severely limited by a Supreme Court decision that gutted a core provision of the Voting Rights Act, footnote18_6k9uh36 18 is now restricted to a small number of places where a court has ordered it (right now, just Evergreen, Alabama, and Pasadena, Texas). footnote19_5nx244x 19

State and Local Law Enforcement

Bottom Line: State and local law enforcement can sometimes be at polling places, but never under orders from the president and always subject to numerous restrictions.

The Concern: The president’s threat to send law enforcement to the polls included local officials such as sheriffs. Even without such threats, the long history of discriminatory policing and official voter suppression in many places provides ample reason to worry that the presence of any law enforcement at the polls may intimidate some voters, especially voters of color.

What’s Legal and What Isn’t: The federal government, including the president, has no authority whatsoever over state and local law enforcement, footnote20_eszyxqh 20 and certainly no power to call them to the polls.

State and local law enforcement officers may have the right to be at the polls for the purpose of helping election officials ensure a safe voting environment. If, for example, private citizens try to interfere with the right to vote, election officials may call law enforcement in to protect the public and ensure no one is deterred from voting.

But there are a variety of legal restrictions placed on state and local law enforcement. In some states, including Pennsylvania and California, officers who show up to the polls without being called there by election officials have committed a crime. footnote21_bennng3 21 In a number of other states, including Florida, North Carolina, Ohio, and Wisconsin, officers at the polls must obey orders from election officials. footnote22_iy8omtz 22 And under no circumstances may state or local police intimidate voters, prevent people from voting, or target particular racial or ethnic groups. These are all violations of federal law. footnote23_1nnbis9 23 Many states also have their own robust voting rights protections. footnote24_lxctrkk 24

In practice, election officials and law enforcement typically develop plans ahead of elections to ensure that voting processes will be orderly and fair, including through intrastate working groups coordinated by election officials to game out and plan for a variety of scenarios.

The National Guard

Bottom Line: The president cannot deploy armed National Guard units to the polls or exert any control over units at the polls. There are also limits on states’ use of the National Guard, including the general prohibitions on intimidation and discrimination.

The Concern: As with the military and federal law enforcement, President Trump has misused his authority over the National Guard. His June deployment of eleven states’ guard units to counter protests in Washington, DC, was widely criticized. Given this history and the president’s recent statements, some worry about guard units being deployed to harass or intimidate voters or election officials.

What’s Legal and What Isn’t: National Guard units under federal command are part of the U.S. military, footnote25_x0jejnn 25 and so deploying them to the polls would be a federal crime, just like it would be for the other military branches. Moreover, using them for law enforcement purposes would in most circumstances violate the Posse Comitatus Act.

These prohibitions do not apply to guard units under the command of a state government. Some states, however, have laws of their own prohibiting the deployment of guard units to the polls. In California, for example, it is a misdemeanor for active-duty guard members (like other law enforcement officers) to enter voting locations in many circumstances. footnote26_u2gott0 26 In every state, guard units under state command are also subject to the same federal and state voting rights and antidiscrimination laws as state and local law enforcement, which means that they would be subject to criminal penalties for voter intimidation or other forms of election interference.

During the primaries, in the face of a nationwide poll worker shortage due to Covid-19, several states did deploy guard units to serve as emergency election workers. Those units were generally unarmed and served as ordinary poll workers or performed other administrative tasks. Such a deployment, while appropriate in the case of last-minute emergencies, is generally a last resort; during the primaries the deployments came at the request and direction of election officials. There should be less need for similar deployments this November, as election officials have been working hard to recruit new poll workers. (In the event that guard members are needed to fill staffing gaps, they should wear civilian clothes and their duties should be limited to those of poll workers.)

Guard units may also be deployed in “hybrid” status, in which they serve a federal mission set by the president or secretary of defense (and are paid with federal funds) while remaining under state command and control. footnote27_s9kbqz7 27 State governors, however, must consent to use their guards for the mission in question. footnote28_s8wkfyd 28 Moreover, guard units in this status arguably act under the authority of the president or secretary of defense and therefore would still be subject to the criminal prohibition on federal military officers stationing “armed men” at the polls. Guard units in hybrid status are still subject to state laws limiting their use at polling stations, as well as all federal and state voting rights and antidiscrimination laws.

Off-Duty Law Enforcement

Bottom Line: Off-duty members of the military, National Guard, and law enforcement are entitled to vote in person, serve as poll workers, and engage in other democratic activities at the polls, but they must follow the same rules as other members of the general public.

The Concern: Decades ago, the Republican Party recruited off-duty police officers to show up to the polls armed and wearing official-looking uniforms to engage in so-called “ballot security” efforts targeting Black and Latino communities. As a result of the Democratic Party suing to challenge the practice, the GOP’s operations were monitored by a federal court for 35 years. In 2017 the court order that provided for that monitoring expired. This year, in the lead-up to the first presidential election free from such oversight, the Republican National Committee is reportedly preparing to send out tens of thousands of poll watchers. The concern is that history will repeat itself.

What’s Legal and What Isn’t: Poll watchers are allowed to monitor elections in most states. Off-duty military members and law enforcement may generally take part in such activities, and of course may also be at the polls to vote themselves.

But, as noted, voter intimidation and discrimination are illegal and often criminal. Many laws, such as the VRA, apply to private as well as governmental actors, and so would cover individuals who are off duty and acting in their personal capacities.

Many states also flatly prohibit openly carrying a gun into a polling place. footnote29_fcz7waj 29 Some states, including Texas, prohibit carrying concealed weapons as well. footnote30_odelmpa 30 Many states prohibit weapons in specific types of polling places, such as government buildings. footnote31_kifh1gz 31 Others have specific rules against brandishing a firearm in a way that could intimidate voters. footnote32_htpn1zt 32

The tactics that the RNC used to intimidate Black and Latino voters are just as illegal today as they were in the 1980s. Anyone who knowingly engages in such tactics can and should face legal consequences.

Private Militias and other Vigilante Poll Watchers

Bottom Line: Voter intimidation by poll watchers is illegal, and there are legal restrictions on who can engage in poll watching and rules in place to ensure accountability.

The Concern: During the first presidential debate, President Trump called for his “supporters to go into the polls and watch very carefully,” and specifically suggested that they do so in Philadelphia. In the same debate, he told the Proud Boys, a violent extremist organization, to “stand by.” Especially in light of the expiration of the consent decree restricting the Republican Party’s “ballot security” operations, these statements have led to concerns of vigilante poll watchers engaging in voter intimidation.

Why It’s Illegal: Not just anyone can show up and watch the polls. Most states limit who can serve as a poll watcher, often to appointed representatives of a candidate or a party and, in some cases, to neutral, nonpartisan observers. In some states, such as Pennsylvania, poll watchers must be registered to vote in the county where they seek to observe the polls. These limits help deter misconduct and ensure accountability. In addition to limiting who can serve as a poll watcher, most states have strict limits on what poll watchers can do. States including Georgia, Florida, and Michigan prohibit poll watchers from speaking to voters. footnote33_n5tpzya 33 Many states allow poll watchers to challenge voter eligibility, but they must follow specified procedural and substantive limits. Poll watchers who abuse their roles may be ejected from the polling place.

State and local laws also restrict armed militias from appearing at the polls. Most states have laws or constitutional provisions prohibiting private groups from engaging in unauthorized paramilitary or law enforcement activities. Georgetown Law School’s Institute for Constitutional Advocacy and Protection (ICAP) published a 50-state guide documenting the laws that state and local governments can use to stop private militias from engaging in paramilitary activities in public spaces. footnote34_p5qp5pj 34

Armed groups or individuals who claim to offer security services at polling stations will also be in violation of state and local laws. Virtually all states have laws that strictly regulate the provision of private security services, particularly armed security services. These laws typically establish licensing and firearms-permitting procedures to ensure security guards are properly vetted, trained, and insured. Depending on the state, providing security services without a license can result in civil fines and/or criminal penalties. footnote35_7098qfq 35

Even apart from all of these limits, both federal and state laws outlaw voter intimidation and conspiracies to prevent eligible Americans from voting, and election officials are prepared to respond and remove bad actors. State and local election officials also have plans and protocols in place to address any disruptions at the polls. Most have strengthened those plans as the threat level has increased. They will not be caught off guard.

Conclusion

Federal and state laws clearly prohibit any deployment of the military, law enforcement, or vigilantes to the polls to intimidate voters or engage in any operation unrelated to maintaining the peace while elections are being held. The president’s suggestions that law enforcement should act inappropriately or that vigilantes will storm the polls are simply designed to discourage voters, particularly voters of color, from voting and to undermine faith in our elections. It is important to call out Trump’s comments for what they are: not just calls for illegal action but also attempts at voter suppression. Voters should not be intimidated.

Endnotes

footnote1_pbthrbt 1. 18 U.S.C. § 592.
footnote2_9e40ia2 2. See 18 U.S.C. § 593 (punishing any officer of the military who seeks to “prescribe or fix . . . voter qualifications,” intimidate voters, or impose election regulations on a state “different from those prescribed by law”); 52 U.S.C. 10102 (“No officer of the Army, Navy, or Air Force of the United States shall prescribe or fix, or attempt to prescribe or fix, by proclamation, order, or otherwise, the qualifications of voters in any State, or in any manner interfere with the freedom of any election in any State, or with the exercise of the free right of suffrage in any State.”).
footnote3_kdryp8q 3. 18 U.S.C. § 1385.
footnote4_4asq9ar 4. U.S. Department of Defense, Defense Support of Civil Authorities (DSCA), Directive No. 3025.18, Mar. 19, 2018, 7, https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/302518p.pdf?v.
footnote5_a81tngb 5. Richard C. Pilger, ed., Federal Prosecution of Election Offenses, 8th ed., U.S. Department of Justice, December 2017, 9, https://www.justice.gov/criminal/file/1029066/download.
footnote6_kr4w7zk 6. 52 U.S.C. § 10101(b) (2018); see also 18 U.S.C. § 594 (2018) (“Whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose . . . shall be fined under this title or imprisoned not more than one year, or both.”).
footnote7_ojs1pyq 7. Democratic National Committee v. Republican National Committee, No. 81-3876 (DRD) (NJ 2009).
footnote8_zt6hq83 8. 52 U.S.C. § 10308.
footnote9_eg4sn4p 9. 42 U.S.C. § 1985(3).
footnote10_sd5sjdy 10. U.S. Const. Amend. I, V, XV.
footnote11_t4jfary 11. See, e.g., State v. U.S. Customs and Immigration Enforcement, 431 F.Supp.3d 377, 392 (S.D.N.Y. 2019).
footnote12_cq1hexe 12. One note of caution: if ICE agents try something illegal, poll workers and others should not take it upon themselves to call them on it. Anyone who tries to prevent an ICE agent from apprehending someone who may be in the United States unlawfully can themselves be held criminally liable, even if the agent is acting illegally. Anyone who witnesses ICE agents near the polls should immediately contact state and local election officials and immigrant and voting rights organizations — including by calling 866.OUR.VOTE, a nonpartisan voter protection hotline staffed by trained volunteers.
footnote13_2dadkyu 13. Pilger, Federal Prosecution of Election Offenses, 9.
footnote14_o5e05w5 14. Pilger, Federal Prosecution of Election Offenses, 9.
footnote15_9h3i7qb 15. Pilger, Federal Prosecution of Election Offenses, 85–86; and 52 U.S.C. §§ 10302(a), 10305(d).
footnote16_6wy6jf0 16. Pilger, Federal Prosecution of Election Offenses, 85n40.
footnote17_76gi9yx 17. U.S. Commission on Civil Rights, An Assessment of Minority Voting Rights Access in the United States, 2018, 268, https://www.usccr.gov/pubs/2018/Minority_Voting_Access_2018.pdf; cf. 52 U.S.C. § 10305(d) (authority to enter polling places granted to observers).
footnote18_6k9uh36 18. See Shelby County, Ala. v. Holder, 570 U.S. 529, 557 (2013) (declaring coverage formula in 52 U.S.C. § 10303(b)); and 52 U.S.C. § 10305 (providing for observers in jurisdictions covered by the formula in § 10303(b)).
footnote19_5nx244x 19. Patino v. City of Pasadena, 230 F. Supp. 3d 667, 729-30 (S.D. Tex. 2017); and Allen v. City of Evergreen, Civil No. 13-107, 2014 WL 12607819, * 2 (S.D. Ala. Jan. 13, 2014).
footnote20_eszyxqh 20. Printz v. U.S., 521 U.S. 898, 935 (1997) (“The Federal Government may neither issue directives requiring the States to address particular problems nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”); see also New York v. U.S., 505 U.S. 144, 188 (1992).
footnote21_bennng3 21. 25 Pa. Stat. and Cons. Stat. Ann. § 3520 (West 2020); Cal. Elec. Code § 18544 (West 2020); John Tanner, “Effective Monitoring of Polling Places,” Baylor Law Review 61 (2009), 60–61.
footnote22_iy8omtz 22. Fla. Stat. Ann. § 102.031(2) (West 2019); N.C. Gen. Stat. Ann. § 163-48 (West 2020); Ohio Rev. Code Ann. § 3501.33 (West 2020); and Wis. Stat. Ann. § 7.37(2) (West 2020).
footnote23_1nnbis9 23. 42 U.S.C. § 1983; 18 U.S.C. § 594.
footnote24_lxctrkk 24. See, e.g., Fla. Stat. Ann. §104.0615 (West 2020); Mich. Comp. Laws Ann. § 168.733 (West 2020); Nev. Rev. Stat. Ann. § 293.710.
footnote25_x0jejnn 25. 10 U.S.C. §§ 10105, 10106 (2018) (“The Army National Guard while in the service of the United States is a component of the Army.”). Note that parallel statutes apply to the Air Force National Guard.
footnote26_u2gott0 26. California makes it a felony for any “person in possession of a firearm or any uniformed peace officer, private guard, or security personnel or any person who is wearing a uniform . . . in the immediate vicinity of . . . a polling place without written authorization of the appropriate city or county elections official.” Cal. Elec. Code § 18544 (West 2020); and Tanner, “Effective Monitoring of Polling Places,” 60–61.
footnote27_s9kbqz7 27. See, e.g., 32 U.S.C. § 502(f).
footnote28_s8wkfyd 28. See 32 U.S.C. § 502(f) (providing for duty on “operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense”).
footnote29_fcz7waj 29. National Conference of State Legislatures, “Polling Places,” Aug. 18, 2020, https://www.ncsl.org/research/elections-and-campaigns/polling-places.aspx.
footnote30_odelmpa 30. Tex. Penal Code Ann. § 46.03(a)(2) (West 2020).
footnote31_kifh1gz 31. Giffords Law Center to Prevent Gun Violence, “Location Restrictions,” accessed Sept. 28, 2020, https://giffords.org/lawcenter/gun-laws/policy-areas/guns-in-public/location-restrictions/.
footnote32_htpn1zt 32. See, e.g., Pennsylvania Department of State, “Guidance on Rules in Effect at the Polling Place on Election Day,” 2016, 3 https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/DOS%20GUIDANCE%20ON%20RULES%20IN%20EFFECT%20AT%20THE%20POLLING%20PLACE%20ON%20ELECTION%20DAY%2010-16.pdf (“Individuals inside or outside the polling place who behave aggressively with a firearm or who ostentatiously demonstrate that they are carrying a firearm and that behavior either is intended to or has the effect of intimidating voters will be removed, reported to the appropriate authorities for investigation and prosecution.”).
footnote33_n5tpzya 33. Ga. Code Ann. § 21-2-408(d); Fla. Stat. Ann. § 101.131(1); and Michigan Department of State Bureau of Elections, The Appointment, Rights and Duties of Election Challengers and Poll Watchers (Sept. 2020), 12, https://www.michigan.gov/documents/SOS_ED_2_CHALLENGERS_77017_7.pdf.
footnote34_p5qp5pj 34. “Prohibiting Private Armies at Public Rallies: A Catalogue of Relevant State Constitutional and Statutory Provisions,” Institute for Constitutional Advocacy and Protection, September 2020, https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2018/04/Prohibiting-Private-Armies-at-Public-Rallies.pdf. ICAP has also published fact sheets for every state with recommendations for the public regarding what to do when private militias are observed near polling places. “State Fact Sheets,” Institute for Constitutional Advocacy and Protection website, https://www.law.georgetown.edu/icap/our-work/addressing-the-rise-of-unlawful-private-paramilitaries/state-fact-sheets/.
footnote35_7098qfq 35. Links to each state’s licensing procedures and regulations can be found at websites promoting security guard licensing and training courses, such as securityguard-license.org and securityguardtraining.com.

Amy Klobuchar: the Cruz Hypocrisy regarding SCOTUS

David Posnett — Sun, 27 Sep 2020 12:58:06 +0000

https://www.youtube.com/watch?v=XtyrrtM7iME&feature=youtu.be

People are already voting and they don’t buy in to phony Republican arguments for replacing Justice Ginsburg as soon as possible to insure enough Trump support on SCOTUS to overturn the election results if needed. Trump is not hiding his intent. This would be the death of democracy and the birth of tyranny.

We need an uprising from the majority of American voters. A revolution against tyranny. Yes, when the minority uses their ill begotten power to suppress the will of the people, that is tyranny and wide spread protests will ultimately happen.

If you are still hesitating about whether we are heading to a dictatorship, read this from Dana Milbank about the parallels between the present day Trump regime and the burning of the Reichstag on February 27, 1933!

Now lets go do our part: Phonebank! Text! Letters! Postcards!

Something you can do for RBG

David Posnett — Mon, 21 Sep 2020 12:04:47 +0000

From Randall Parsons/Judith Hope:

If you feel the need to do something… or something more than you’ve been doing, here’s a way to honor RBG and help stop McConnell from pushing through another ultra conservative Supreme Court nominee.

Leave voicemails for the six Senators below. Murkowski and Collins have said they’ll oppose the vote, but it’s a good idea to call and support (and thereby reinforce) their decision. To make it easier for you, here’s a script for the other four (and we only need two of them):

“My name is________________. I know you know that Mitch McConnell is hypocritically ignoring the principle he set up in 2016 by trying to confirm a Supreme Court justice less than 7 weeks before the Presidential election. To preserve the legitimacy of the Court in the eyes of all Americans, I’m asking you to refuse to do that until after a new president is sworn in.”

Obviously, change the script in any way you want.

If you call today or tonight, you won’t have to talk to a live person. You can email if you prefer, but you’d have to leave your address, phone number, etc.

Mitt Romney, Utah: ‎(202) 224-5251
Martha McSally, Arizona: (202) 224-2235
Cory Gardner, Colorado: (202) 224-5941
Chuck Grassley, Iowa: (202) 224-3744
Susan Collins, Maine: (207) 784-6969

Lisa Murkowski, Alaska: (202) 224-6665

Those were the names that were sent to me, but I thought it would be worth it to contact the three Republican incumbents, who are retiring and have nothing to lose by opposing McConnell. I appealed to their sense of fairness:

Lamar Alexander, Tennessee: (202) 224-4944
Mike Enzi, Wyoming: (202) 224-3424
Pat Roberts, Kansas: (202) 224-4774

It seems that we the people are the only ones who can prevent this travesty. A lot of noise has worked before.

Law and Order: not for Zeldin and Flynn

David Posnett — Thu, 07 May 2020 23:16:03 +0000

Remember when Republicans were known as the “law and order” party?

Seems like a million years ago.

Let’s recap the saga of Mike Flynn:

November 2016: Trump announces Flynn as his incoming national security advisor.
December 2016: Flynn secretly talks to the Russian ambassador.
January 2017: Flynn tells the FBI he didn’t talk to the Russian ambassador.
February 2017: Flynn is fired by President Trump. Trump: “I had to fire General Flynn because he lied to the Vice President and the FBI.”
December 2017: Flynn pleads guilty to a felony, saying he “willfully and knowingly” made “false, fictitious and fraudulent statements” to the FBI.
2018-2019: Flynn’s sentencing is repeatedly delayed…
April 2020: Lee Zeldin says he’d be “honored” and “proud” to serve with Flynn.

And finally, today: Donald Trump’s Attorney General drops the charges to which Flynn had already pleaded guilty. And Lee Zeldin celebrates on Twitter.

Unbelievable.

Equally unbelievable is Lee Zeldin’s defense and support of Flynn.

This is unacceptable behavior for a Member of Congress.

This is not the rule of the law.

This is not how a democracy is supposed to work.

If you break the law, you should get prosecuted. If you’re convicted or plead guilty, you should incur punishment. No matter how powerful your friends are.

The good news? In 2020, we can get rid of Lee Zeldin.

Whither the Supreme Court?

David Posnett — Tue, 02 Oct 2018 17:42:04 +0000

Thursday, September 27^th 2018 was a very bad day for the Supreme Court. And at the epicenter of that day was a 45 minute rant by Judge Brett Kavanaugh, a nominee to the Supreme Court of the United States, furious that he was being questioned about a credible allegation of sexual misconduct simply and solely, he claimed, as the victim of a “political hit”. “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election,” he charged, his voice cracking with rage. It was all about “revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

Never before has a nominee for the Supreme Court so openly and nakedly aligned himself with one political party and expressed such hatred for the other. Over and over again Kavanaugh, in a diatribe that would have earned him a contempt citation in any court in the land, derided “the left” in general and the Democratic Senators questioning him in particular as the enemy, out to get him. There’s been a lot of talk about Judge Kavanaugh’s “judicial temperament” or lack thereof as evidenced by this performance. A basic requirement of a judicial temperament is a respect for facts and evidence. So I wondered after hearing this extraordinary charge: does he have any evidence to back this up? Does he really believe that the hearing he was so bitterly complaining about was really nothing more than revenge on behalf of the Clintons? That he was being made the scapegoat for the result of the 2016 elections? As somebody who voted for Hilary Clinton and felt she was the victim of a decades long campaign of vilification, and as someone who was plenty angry about the election of Donald Trump, I felt the charge was ridiculous. He was there not because of the 2016 election or the mysteriously omniscient power of the Clintons, but because of who he was and very possibly what he had done.

Aside from the very plausible allegations about his possibly criminal behavior as a teenager, Kavanaugh was sitting in the hot seat not because of revenge on behalf of the Clintons or anger about the election of 2016 but because of a long and lamentable history of politicizing the Supreme Court, a history he was very much a recent addition to. History both in the short term and in the long term. If Judge Kavanaugh really wanted to come to the truth of the matter, the way a judge would, instead of whining about not being allowed to ascend triumphantly to a promised seat on the Supreme Court and cement a conservative majority for the foreseeable future, he could have brought up many things. There was, for example, the strange case of Merrick Garland only two years before. But if we ourselves really want to understand how and why the Supreme Court has come to such a lamentable pass, in danger of losing any shred of credibility as the “non-political” branch of our Constitutional system, we have to go back a lot further than Merrick Garland.

THE POLITICIZATION OF THE SUPREME COURT: THE DISTANT HISTORY

In 1937, at the height of his power and fresh from winning the greatest landslide Presidential election in history, Roosevelt proposed legislation to expand the number of Justices on the Supreme Court. It would have allowed him to appoint an additional Justice to the Court for each Justice over the age of 70 currently on the Court up to a maximum of six. Although it is true that there is nothing in the Constitution requiring there to be exactly nine Justices, Roosevelt’s motive for upending longstanding tradition and trying to “pack” the court was clearly and nakedly political. He was tired of the “Four Horsemen”, as the four rigidly conservative Justices on the Court were termed, voting time after time to strike down New Deal legislation. He was unwilling to wait for death and retirement to change its composition. The result of his attempted gambit was that not only was it denounced by many members of his own party, but he suffered a major reversal in his popularity (what today would be called his “approval rating”) and his party suffered major defeats in the elections of 1938.

What Roosevelt failed to accomplish by executive fiat in 1937 was effectively accomplished by 20 years of political dominance by the Democratic party from 1932-1952. The “Four Horsemen” so despised by Roosevelt were gradually replaced by appointees with a very different outlook such as Robert Jackson, Felix Frankfurter, William O. Douglas, and Hugo Black. The Supreme Court, it seemed, would remain the non-political branch of government, evolving slowly over time to reflect the application of Constitutional law to changing historical circumstances and mores, acting as a kind of flywheel in the American system of government.

With the election of a Republican president in 1952 it appeared that the drift of the Supreme Court away from reflexive support for business against labor would be slowed down. Eisenhower’s first appointment was Earl Warren, the popular Republican governor of California. The world of 1953, when Warren was appointed, was one of institutionalized segregation through a host of Jim Crow state laws that no Supreme Court dared strike down. It was one where individuals arrested by the police were seldom informed that they had any rights and were often interrogated using brutal methods. It was one where criminal defendants did not have a right to be represented by a lawyer; if they were too poor to afford one that was just too bad. All that was about to change. Brown v Board of Education started the process of dismantling institutionalized segregation, overturning the “separate but equal” doctrine that operated on the fictional assumption that the equal part of this flawed equation was in good faith. Over half a century of historical experience provided abundant evidence that it was not, and the court overturned this doctrine. However, the segregationist mindset was deeply embedded in America. Eisenhower, normally thought of as a moderate man, free of prejudice, enraged by the crimes of the Nazis, invited Earl Warren to a White House dinner before the case was heard where he told Warren “These [southern whites] are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.” In spite of this Warren was able to overcome the resistance of a couple of holdouts on the Court and achieved a unanimous 9-0 decision to give Brown v Board of Education tremendous authority as a landmark decision.

The response was outrage amongst a significant segment of the American public. During the deliberations about the decision several of the Justices worried aloud about its enforceability. Their concerns were well founded. There was active and at times violent resistance, resistance which finally forced a reluctant Eisenhower to call out the National Guard to enforce school desegregation. Earl Warren became the most hated man in America in many quarters. This hatred was only increased in the following decade when the Supreme Court handed down the Gideon decision, the Miranda decision, and the Engel decision which ruled that public or sponsored prayer in public schools was unconstitutional. In 1964 I was part of a youth group a bus tour to see for the first time what the United States looked like outside the New York metropolitan area. I remember on the way to Disneyland spotting billboards demanding “Impeach Earl Warren” in huge capital letters. Out of curiosity a few of us Easterners ventured into a John Birch Society headquarters. Below the maps showing the entire world with the exception of the United States in varying hues of red and pink, were books explaining at length and in great detail why it was necessary to get Earl Warren impeached to restore the true American values of the founders. At the time I thought it all a bit of a joke: a sad, bitter little movement at the fringes of American society. How wrong I was.

What I was seeing was the early stages of an aggressive movement to “take back” the Supreme Court. This movement has taken various forms and employed various tactics over the years, but the purpose was always the same: to achieve a Supreme Court that would rule in conformity with the political philosophy of the passionate right. In order to do this and avoid being perceived as nakedly political, the movement to take back the court has over the years employed terms such as “judicial activism”, “activist judges”, “legislating from the bench”, and “strict constructionist”. These terms have done the movement yeoman service in obscuring its true objective, which is inherently political; that is, to achieve a certain outcome and then to construct for it a rationalization, no matter how tendentious.

In spite of its fierceness the movement to “take back” the court seemed to be foundering entering the 1970s. The Brown decision was being grudgingly accepted, at least in most of the country. In any case a private school movement had sprung up to circumvent it. Police departments adjusted to the Miranda decision without the apocalyptic consequences predicted by its opponents. The Gideon decision sparked little public outrage; it concerned indigents, not nice middle class people. The school prayer decision did spark widespread outrage but dealt with too narrow a segment of American life to build a political movement on. All this changed with Roe v Wade. In spite of the fact that it was a 7-2 decision and that one of the dissenters was a Kennedy appointee, it was quickly perceived as a political godsend by the Republican Party, which in 1973 had already successfully fought and won using Nixon’s “Southern strategy”. Within a very short time the Republican Party had mobilized both the Catholic Church and the Evangelical Church to march to its political tune. Up until then the Catholic vote was predominantly Democratic; even more so after Kennedy’s victory in 1960. Evangelicals largely stayed out of politics, or at least were not an identifiable voting bloc; this appeared consistent with a belief in keeping separate what should be rendered to Caesar and what to God. By mobilizing the passionate doctrinal opposition of the Catholic and Evangelical Churches to abortion under all circumstances the Republican Party was able to manufacture in short order two large new voting blocs in its favor: “single issue” opponents of abortion. Never mind that imposing the doctrinal beliefs of a particular religious group or groups on the American body politic is specifically antithetical to the Constitution. It didn’t matter. Republicans had a winning issue. Every national election it collected millions of votes in its favor on the basis of this issue with little blowback. There was no similar conversion to the Democratic side this issue; those taking the “pro-choice” side were for the most part already Democrats; if they weren’t they weren’t single-issue voters either.

From 1973 to the present the Republican Party has stoked outrage at the legalization of abortion. It has fully embraced the doctrine of the religious right that life begins at conception. The corollary to this is that abortion is equivalent to murder, with all the legal consequences that entails. So it is that we have seen a series of increasingly absurd laws whose ostensible purpose is to “protect” the unborn, but whose real purpose is to enshrine into law this religious doctrine. The most recent example of this is a Texas law that health care facilities must provide for the burial or cremation of fetal remains, including not only abortions but also miscarriages. Fortunately in 2018 this law was struck down by a Federal District Court but no doubt will be appealed to the Supreme Court in a coming term. In addition to this legal strategy, the Republican Party has used good old-fashioned propaganda, encouraging comparisons of abortion to the Holocaust, comparisons which I for one find not only ludicrous but offensive.

When Justice Lewis Powell resigned in 1987, at the beginning of Reagan’s second term, Republicans saw their chance to finally take control of the court and shape it to their political objectives. The year before, the moderate conservative Chief Justice Burger resigned. To replace him Reagan promoted the most conservative Justice on the Court, and one of the two Justices who had voted against Roe, William Rehnquist. to Chief Justice. To take Rehnquist’s Associate Justice seat he appointed Anthony Scalia, to the right even of Rehnquist and far more of an ideologue. Powell, appointed by Nixon, had been a swing Justice, voting unpredictably according to his interpretation of how the Constitution applied to the case at hand. In theory that would seem to be what those opposed to “judicial activism” wanted. In practice it was anything but. Reagan chose to appoint Robert Bork, an icon of the ultra-conservatives in the Republican Party, the man who invented “originalism”, the doctrine under which Scalia operated, holding that cases brought in 1987 had to be decided using only the most literal reading, the “original intention” of the writers in the Constitution, who lived in the very different world of 1787. Aside from the fact that this theory was a novelty, outside the mainstream of American jurisprudence, it seemed suspiciously prone to producing a result very much in conformity with the political objectives of the Republican Party. On top of this, during his confirmation hearing Bork expressed views that were clearly outside the mainstream of American law. He had opposed the one man, one vote decision of the Warren Court. He wrote an article opposing the 1964 Civil Rights law forcing businesses to serve people of all races. He opposed the Griswold decision which struck down a Connecticut state law banning contraceptives for married couples, which incidentally first established as a matter of law a Constitutional right to privacy which underpins the Roe decision, and which is now possibly in jeopardy given the success of the current Republican effort to change the direction of the court. Bork’s nomination was defeated 58-42, the largest in history. At a press conference after the defeat, the ranking Republican member of the Judiciary Committee, Strom Thurmond, said ”I would recommend they not send someone as controversial.” In response Reagan very sensibly nominated a far less ideological judge, Anthony Kennedy, the Justice who would be replaced by Brett Kavanaugh should Kavanaugh’s nomination be confirmed.

The reaction by the Republican Party, especially its hard right, to the rejection of Bork was one of great bitterness. Instead of replacing a moderate conservative with a reliable ideologue, they had only replaced one moderate conservative with another. William Safire, a columnist generally aligned with the Republican right coined the verb “Borking” to describe the perceived unfair rejection of a nominee for political reasons. In his tirade to the Senators last Thursday Brett Kavanaugh used this term, claiming that the objections of “several of the Democratic members of this committee” to his nomination was a “Borking”. So little is this term understood or in common use outside of the hard right that I read one transcription of Kavanaugh’s opening speech that read “working” in place of “Borking”. In spite of the partisan bitterness this embodied by this term, the Republicans themselves are hardly without blame for the Robert Bork fiasco. Democrats, who were in the majority, warned Reagan not to nominate him, and that should he do so they would fight it with everything they had. There was good reason for this. Bork had long coveted the position and was promised it by Nixon, who had a soft spot for him as a result of his compliance in the “Saturday Night Massacre” of 1973. Unfortunately for Bork, Nixon was forced to resign before another Supreme Court appointment became available. This alone should have been disqualifying. In addition his nomination was passionately opposed by all civil rights groups, who had not forgotten Bork’s equally impassioned denunciation of the 1964 Civil Rights Act. Benjamin Hooks, the Executive Director of the NAACP stated: “We will fight it all the way—until hell freezes over, and then we’ll skate across on the ice.” In spite of this a Republican triumphalism that was to become an increasing factor in future years carried the day and Bork was nominated by Reagan much to the temporary delight of the Republican hard right.

Bork’s nomination was defeated in Committee 9-5. In spite of this, Bork insisted that his nomination be brought to the full Senate floor, where it was also defeated. In retrospect it is clear that if it was true that Bork’s highly charged political beliefs were responsible for his defeat, it was also true that his degree of open partisanship was highly atypical of judges who had been nominated to the Supreme Court throughout most of its history. However you view it, his nomination was a disaster for the Court, and for the “Advise and Consent” role of the Senate. The ideological battle lines were clearly drawn and it was open warfare. The Republican Party felt it had been cheated from achieving its long-term objective of filling the Court with Justices who could be relied on to rule in accordance with its political goals. It was an avoidable long step down the road of politicizing the Court.

THE POLITICIZATION OF THE SUPREME COURT: RECENT HISTORY

After the appointment of Anthony Scalia the next bite at the apple came in 1990 with the resignation of Justice Brennan, one of the most liberal Justices on the Court. To replace him George H.W. Bush selected a little known but highly respected Republican Judge from New Hampshire, David Souter. As an Associate Justice on the Supreme Court of New Hampshire Souter was noted for his tough sentencing. Souter was on friendly terms with a number of very conservative figures in New Hampshire, and John Sununu, Bush’s chief of staff and former Governor of New Hampshire, pushed for his nomination, assuring hard-right movement conservatives such as Paul Weyrich, co-founder of the Heritage Foundation, the American Legislative Exchange Council (ALEC), and coiner of the term “the Moral Majority”, that Souter would be a “home run” for the right. Most important for Republicans still smarting from the rejection of Bork he had almost nothing in the way of a judicial record on the federal level. He was the perfect “stealth nominee”.

On the surface he certainly seemed ideal nominee to further the long standing goal of “taking back” the Court. Bookish to the point of reclusiveness, Souter owned no computer, no fax machine, no cell phone, no TV, and did not attend movies. He owned a vast library and read extensively. He took notes using a fountain pen on a yellow legal pad. He seemed a man out of an earlier era, maybe even an earlier century; he was described by a friend as “a creature of the seventeenth century.” Although clearly no ideologue his professed judicial approach was a “rational minimalism” that argued that precedent — i.e. earlier court decisions principally — should be overturned only when it was clear that there were demonstrable flaws in logic or naked prejudice. Likewise, he was a strong believer in the conservative shibboleth that judges should not “legislate from the bench”, that the Court should interfere only with the greatest deference in the work of the political branches. He was “a strict constructionist.” In short, Souter seemed the perfect embodiment of the professed judicial ideal of the right: uninfluenced by the changing morals and mores of the times, and an enemy of “judicial activism”. In spite of the opposition of the left led by the NAACP and NOW – Molly Yard, the president of NOW, testified at Souter’s confirmation hearing that Souter would “end freedom for women in this country.” – Souter’s nomination sailed through and he was confirmed by the Democratic-majority full Senate 90-9, all nine “No” votes coming from liberal Democrats.

Souter’s first two years on the Court seemed to bear out Sununu’s prediction of a “home run” for the right. He consistently voted with Scalia. In the spring of 1991 the elderly Thurgood Marshall resigned. In 1954 Marshall had argued for the plaintiff (i.e., in favor of) before the Court in the Brown v Board of Education. An Associate Justice for 23 years he was widely viewed as the keeper of the flame on Constitutional issues arising from civil rights legislation. Politically it would have been difficult to replace him with a white nominee. So H.W. Bush nominated Clarence Thomas, whom he had considered at the time of the Souter nomination and had rejected on the grounds of insufficient judicial experience. To explain his choice Bush put forth the palpable falsehood that Thomas was the finest African-American judicial mind available, now having 16 months on the federal bench under his belt. As far as his judicial philosophy Thomas was strongly influenced by the work of Ayn Rand and Thomas Sowell, both of whom wrote from an extreme libertarian perspective, from the viewpoint that government efforts at social reform are inherently wrong and counter-productive, and that only through individual action can disadvantages of birth be overcome.

Replacing Marshall with Thomas looked like another “home run” for the right. The goal of overturning Roe v Wade, as well as generating a host of decisions friendly to business and hostile to social reform seemed tantalizingly close. And then the Thomas confirmation hearing blew up in a way very similar to the Kavanaugh hearing today. Anita Hill came forward with highly credible allegations of sexual misconduct while she served under Thomas at both the Department of Education and the EEOC. Like Kavanaugh today Thomas angrily denied the allegations, claiming he was a victim of a media circus and a “high tech lynching,” a curious defense for a jurist who consistently argued against any special treatment on the basis of race. Anita Hill was harshly questioned by the Republicans on the Committee led by Arlen Specter, weakly defended by the majority Democrats led by Joe Biden and vilified in the conservative press as a nymphomaniac and a liar (the description of her as “a little bit nutty and a little bit slutty” is from the book The Real Anita Hill by David Brock, then a right wing political operative, which came out the following year). The Judiciary Committee split 7-7, sending Thomas’s nomination to the floor with no recommendation for or against. Thomas was ultimately confirmed 52-48, the smallest margin in over a century. He ultimately became along with Scalia the most reliably conservative Justice. The distance between him and Thurgood Marshall, whom he replaced, could hardly be wider.

With Thomas on the Court it looked like all systems were go for the overturning of Roe in the 1991-1992 court term. And the case of Planned Parenthood v Casey, brought that term to test the Constitutionality of laws enacted by the State of Pennsylvania to make abortion difficult or impossible in many cases, looked promising for fulfilling that goal. Upholding the Pennsylvania laws meant making Roe all but a dead letter. Of the nine justices on the Court, eight were appointed by Republicans, and the only Democratic-appointed justice, Byron White, had, along with Rehnquist, been one of the two dissenters in the original Roe decision. Ken Starr argued on behalf of the Bush administration that Roe was wrongly decided. However trouble was on the way for the Republicans. Sandra Day O’Conner, appointed by Reagan, had little sympathy for the push to revert back to the pre-Roe days of illegal back alley abortions. Two more, Blackmun and Stevens were out; Blackmun because he was the original author of Roe, Stevens because he had voted specifically to uphold Roe in previous decisions. That left Kennedy and Souter along with Rehnquist, White, Scalia, and Thomas to overturn. However Souter unexpectedly sided with O’Conner, Blackmun, and Stevens to strike down the Pennsylvania laws. That still appeared to leave a five vote majority to uphold the restrictive laws. However in the days following the conference between the Justices to decide the case, Kennedy changed his mind and joined with O’Conner and Souter in a plurality decision to make only minor changes in Roe v Wade, and in fact going beyond Roe in formulating a new “undue burden” standard upon any state laws restricting the availability of abortions. In short, it was a stinging defeat for the “pro-life” political movement to again outlaw abortion and return to the days when annually the hundreds of thousands of women with an unwanted pregnancy were faced with choices ranging from dismal to appalling.

With the election of Bill Clinton in 1992 it looked like the hopes of the political movement to take back the court were dashed for the foreseeable future. With the appointment of Ruth Bader Ginsburg to replace Byron White they took a step backwards, and the appointment of Stephan Breyer to replace Blackmun gave the now liberal majority greater longevity. In the late 90s David Souter increasingly sided with this majority. As a result he became probably the most hated man in America in rightwing circles. The cry of “No more Souters” became a watchword for the movement to take back the court. The next Republican president would vet Supreme Court nominees for their political beliefs like never before.

As the 90’s wore on Republicans began to question why Republican-appointed Justices seemed to drift to the left while no Democratic-appointed Justice ever drifted in the opposite direction. Kennedy, O’Conner, Stevens, and most egregiously Souter were cited as prime examples of this. Often the tone of Republicans towards these Justices carried a strong whiff of betrayal. Varying explanations were proposed for the drift. Perhaps the most widely accepted explanation was that the drift reflected movement in public opinion, such as changing attitudes towards homosexuality. Critics from the right however, including Justices Scalia and Thomas, rejected this explanation in favor of something more insidious: as reflective of the leftward march of the intellectual elite, including news reporters, legal commentators such as Jeffrey Toobin, and law school professors. While this explanation is very satisfying to the Republican base, which tends to attribute most of the ills of society to a purported left-wing elite, it is highly implausible given a little consideration. Justice Stevens, probably the most brilliant jurist on the Court he sat on was fiercely independent. A biography of him is titled “John Paul Stevens: an Independent Life.” When asked in 2007 if he still considered himself a Republican, his reply was “”That’s the kind of issue I shouldn’t comment on, either in private or in public.” It’s nothing short of absurd to presume that the deep, complex and nuanced thinker that Stevens was would fall under the influence of the passing intellectual trends of his times. Even less would Souter, a man uniquely divorced from the ephemeral world around him, a man who did not watch TV, go to movies, or read popular magazines. Souter hated Washington DC and its social gatherings; he disdained intellectual fashions. A rival and ignored explanation for the supposed leftward drift of these Republican-appointed Justices is that they didn’t drift left but appeared to do so viewed from an ideological platform drifting further and further right. It’s entirely possible that the Republican centrist of 1976 appeared as the thoroughgoing liberal of 2009 from the viewpoint of movement conservatism. Or maybe it’s simply that Justices such as Stevens, Souter, O’Conner, and Kennedy, not committed to any particular judicial ideology, much less a political one, actually did “call balls and strikes as they seem ‘em” to repeat the favorite formula regularly trotted out at the confirmation hearings of recent Supreme Court nominees.

Increasingly in the 80’s and 90’s and on into the 21^st Century the Supreme Court became an important issue in Presidential campaigns. Republican candidates would regularly denounce “activist judges” supposedly “legislating from the bench”, overriding the two political branches. They would promise to appoint “strict constructionists”. The problem is that it was awfully hard to see any daylight between “strict constructionism” and the ideological goals of the Republican party, particularly on hot-button issues such as campaign finance reform, gun control, and abortion. This tendency culminated in the election of 2016, in which Donald Trump made the composition of the Supreme Court a central campaign issue, thus winning over voters of the religious right who might otherwise hesitate to support a candidate caught on tape bragging about the impunity with which he was able to commit sexual assault. What’s clear is that making the composition of the Supreme Court a campaign issue in Presidential elections contributes radically to the further politicization of the Court and threatens its independence from the other branches.

With the election of 2000 the Republicans not only looked to get their chance to take back the court but in fact got to decide the result of the election itself with Republican-appointed Justices. In a highly controversial 5-4 decision the four Justices most identified with movement conservatism, joined by O’Conner, decided to stop the Florida recount and award the election of 2000 to Bush. Aside from the fact that some have argued that both O’Conner and Rehnquist should have recused themselves because both expressed a wish to retire during a Republican administration, the decision seemed at odds with the legal theories long espoused by Scalia, Thomas, and Rehnquist. This led to suspicions that there was a partisan undercurrent to the Bush v Gore decision. Jeffrey Toobin has written that so upset was Souter by what he considered the crudely partisan nature of the decision that he seriously considered leaving the Court, feeling that he could no longer serve with the Justices behind the decision. There is no question that the decision damaged the Court, diminishing further its position in the eyes of the American public as a non-partisan arbiter of Constitutional questions.

The chance to change the direction of the court came in the second term of George W Bush. The elderly Rehnquist had died in 2005 and was replaced by the reliably conservative and much younger John Roberts as the Chief Justice. Although that meant extending the longevity of a conservative Chief Justice, it did not significantly alter the direction of the Court. The moment of truth arrived when the moderate O’Conner announced her retirement the next year. With the cry of “no more Souters” ringing in his ears, Bush chose to replace her with Samuel Alito, a member of the Federalist Society, an organization dedicated to the promotion of ideological conservative judicial theory, notably Originalism, and increasingly the de facto gatekeeper of lawyers aspiring to federal judgeships under Republican administrations. As a federal district judge in Pennsylvania, Alito had gone further than the other judges on that court in the Planned Parenthood vs Casey decision, unlike them ruling a wife must obtain spousal consent from her husband before obtaining an abortion, ignoring the argument that forcing spousal consent could lead to spousal abuse and domestic violence.

Although with Kennedy still on the court the movement did not have the votes to overturn Roe, they did have the votes along with Kennedy to embark on a series of decisions handing Republicans political victories important to the Republican base. One of the first of these was the Heller decision, which, in a radical departure from all previous case law on the Second Amendment, held that the Second Amendment contained an individual right to own any firearm “in common use” in spite the “well-regulated militia” clause. To explain this stunning reversal using originalist theory Scalia evolved a complicated argument that paradoxically relies less on the text of the Second Amendment than on a historical analysis of the “natural right” of self-defense. In a blistering dissent Stevens pointed out this contradiction to Scalia’s purported adherence to the text of the Amendment and the intentions of its writers. He pointed out that nowhere in the text of the Second Amendment is an individual right enunciated, that the phrase “to keep and bear arms” along with the militia preamble clearly points at an application to state militias only, and that Scalia’s decision implied the Framers intended to restrict the regulation of firearms by elected officials, a proposition Stevens found absurd. In any case Scalia’s decision seemed to contradict the stated horror of movement conservatives of “judicial activism” and “legislating from the bench”. This seeming inconsistency bothered movement conservatives not a jot however. They were all too happy to ignore the inconsistency to achieve a political goal coveted by the NRA and its constituency for decades. Given the background of gun control as a major political issue, it was hard to escape the conclusion that the Heller decision was politically tinged.

In 2013 the Court heard Shelby County vs Holder. Shelby County in Alabama had sued Eric Holder, the Attorney General of the United States. It claimed as unconstitutional provisions in the Voting Rights Act (VRA) of 1965, which forced it, along with other counties and states in the United States with a history of racial discrimination in voting rights, to obtain “preclearance” from the federal government before making any changes to their voting laws. The Supreme Court had explicitly upheld preclearance as Constitutional in decisions from 1973, 1980, and 1999. In addition Congress had specifically re-authorized the section of the law under dispute in 2006 for an additional 25 years. In addition two lower federal courts had already ruled on Shelby, holding that both preclearance itself, and the coverage formula dating from 1975 used in its enforcement to determine which counties showed a pattern of discrimination, passed constitutional muster. In spite of all this the Court struck down this key provision of the VRA, ruling 5-4 in an opinion written by Chief Justice Roberts that the “40 year-old facts “ of the coverage formula had “no logical relationship to the present day”. The opinion further ruled that a state or county cannot be subject to preclearance simply because of past discrimination. In effect this rendered the heart of the VRA a dead letter except in the unlikely event that Congress legislates a new coverage formula. In his opinion Roberts conceded that the VRA had been tremendously successful “at redressing racial discrimination and integrating the voting process”. But, somewhat fatuously, Roberts claimed that if the coverage formula had been updated in 2006 when the VRA was renewed, it would not find the “pervasive”, “rampant”, “flagrant” and “widespread” discrimination that Congress observed when the VRA was originally enacted in 1965. In dissent Ruth Bader Ginsburg noted dryly that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Within hours of the decision being handed down Texas and Mississippi officials pledged to enforce recently enacted state Voter ID laws that had not been precleared. Since the ruling a host of other Voter ID laws have been enacted, as well as laws ending practices increasing minority turnout such as same-day registration, early voting, Sunday voting and pre-registration for teens about to turn 18. Three years after the ruling 868 polling places had been closed down, primarily in minority communities. Furthermore an investigation by ProPublica in 2017 revealed that Roberts had used erroneous data in evaluating whether or not patterns of racial discrimination still existed. The data Roberts used lumped Hispanics in with Whites, thereby depressing the apparent White turnout bringing it more in line with the Black turnout, leading to a false conclusion of progress. The real story behind Shelby was its validation into law of the strategic decision by the Republican Party to suppress voter turnout amongst the poor and minorities through aggressive Voter ID laws and rollbacks in accessibility to the polls. The Shelby decision must be viewed in the context of the highly partisan drive by the Republican Party to enhance its political power through voter suppression. In spite of the baroque reasoning of Robert’s opinion it’s difficult to escape the conclusion that the Roberts Court was “legislating from the bench”, overturning legislation enacted by the political branches for what looked like, to the untrained eye, nakedly partisan reasons. It, the Heller decision and other decisions by the Roberts Court have rendered the phrase “judicial activism” as used by Republicans in political campaigns meaningless. Or rather it seemed to mean judicial decisions that ran counter to the political interests of the Republican Party.

Throughout the Obama Administration the atmosphere on Capitol Hill grew ever more bitterly partisan. Exhibit A was Mitch McConnell’s statement two years into the Obama Administration that his overriding goal was to make Obama a one-term President. After the Republicans gained seats in the Senate in 2010 a number of vacant judicial seats remained unfilled because the Republicans put up procedural hurdles. After the 2012 election, in which the Democrats did better, the minority Republicans still continued to use tactics to hold up Obama nominations to the bench, including the traditional “blue slip” rule allowing a single Senator to blackball a nomination of a Judge to a court covering his state. (This rule was quietly dropped in 2017 when the Republicans held the majority and the Presidency, and it was no longer convenient for them). Finally losing patience and in frustration, Harry Reid, the Democratic majority leader, in a move many even on the Democratic side considered unwise at the time, unleashed the “nuclear option” which eliminated the filibuster on judicial nominations except the Supreme Court. This politicized the judicial nominations even further; no longer would a nominee have to attract some bi-partisan support. Instead judicial nominations could be rammed through by the majority on a purely partisan basis. A predictable effect of this was that centrist nominees or nominees tied to no political agenda would become increasingly rare because of their prospects for promotion to higher judicial posts were dim. If one party held both the Presidency and the Senate, why would it not select judges guaranteed to push forward its own political agenda? Although the short-term provocation for Reid’s decision was understandable, in the long term it was another big step down the road to politicizing the Courts.

Worse lay ahead. On Feb 13, 2016 Anthony Scalia unexpectedly died. A month later, on March 16, Obama nominated Merrick Garland to the Supreme Court. Garland was at the time Chief Judge of the U.S. Court of Appeals for the District of Columbia, a powerful post on a court often considered an incubator of Supreme Court nominees. A number of Democrats on the left expressed displeasure with his nomination, arguing that instead of a white male centrist with a law and order reputation, Obama should have nominated a black woman or at least someone less pro-business and further to the left. Many Republicans such as Orrin Hatch had in the recent past expressed admiration for Garland. In 2010 when Obama had a vacancy to fill, Hatch announced that he would help insure Garland’s confirmation on a bi-partisan basis if Obama nominated him, characterizing Garland as a “consensus” candidate. In 1997 Garland had been confirmed to his D.C. Court of Appeals post by the Republican controlled Senate by a vote of 77-23. Garland had more federal judicial experience than any Supreme Court nominee in history and was the oldest Supreme Court nominee since 1971.

None of this really mattered though, because within hours of Scalia’s death Mitch McConnell announced that he would not consider any nomination by Obama, and that the nomination should only be made by next president, a statement contradicted by later statements made by several Republican Senators who declared that should Hillary Clinton be elected, the lame duck session of the Senate would act to confirm Garland on the expectation that a Clinton nominee would be “worse”. After Garland was nominated Republican Senators, acting on McConnell’s orders, refused to even meet with Garland. McConnell’s reasoning that “the American people should have a say in the court’s direction” was clearly specious and without any Constitutional basis, although it fit perfectly with the decades-long Republican strategy of cultivating one-issue “Supreme Court voters”. Although appointments in a President’s lame duck year are rare they were not unprecedented. What was unprecedented was to entirely ignore a Presidential nomination to the Supreme Court, as if no vacancy existed. As the spring and summer of 2016 drifted by, protests of Garland’s treatment mounted and not just from Democrats. Scores of law professors, historians, and political scientists of varying political stripes urged the Senate to at least have a process for Garland as a duly appointed nominee with impeccable qualifications. But wielding the raw power of the Senate majority, McConnell refused to budge. After 273 days of inaction the Garland nomination officially lapsed with the end of the 114^th Congress. McConnell was doubly successful in his tactic; denying the seat to a Democratic President, and motivating “Supreme Court voters” to vote Republican in 2016, particularly the one-issue right-to-life constituency Republicans had nurtured over decades, and hungering for the long-awaited triumph of overturning Roe v Wade. That the Republican nominee turned out to be Donald Trump did not matter. What mattered was Trump’s promise to nominate only judges from a pre-vetted public list provided by the Federalist Society. McConnell’s achievement of what he considered the crowning moment of his political career came at the cost of permanently damaging the Supreme Court as an institution trusted for its independence by the American public, and of incidentally damaging the remaining shreds of comity in the Senate as well. It made the claim of the Supreme Court to be the non-political branch of the American system of government appear naïve and foolish. Those nominated to it would be selected above all not for their qualifications or intellect, much less for their independence, but for their loyalty to a political movement. The open proclamation by Trump that if elected he would nominate only judges pre-selected by the Federalist Society stripped away even the fig leaf of judicial independence. Once inaugurated, instead of Merrick Garland Trump selected Neil Gorsuch, notable particularly for his hostility to Church – State separation, and a reliable vote not much different than Scalia in outcome if not in temperament. Although Gorsuch certainly possesses the resume to sit on the Court it is difficult not to view the seat he sits on as “the stolen seat.” When the Democrats attempted to block his nomination using the filibuster rule, which had remained in place for Supreme Court nominations after Reid removed it for lower court judicial nominations, McConnell simply invoked the “nuclear option” for the Supreme Court as well and rammed the nomination through.

Which brings us to the present day, and the Kavanaugh nomination to replace Kennedy. Full disclosure: I believe the allegations of Dr Blasey Ford. I believe them for a number of reasons including but not limited to: her authenticity as a witness and her “100%” certainty that her assailant was Kavanaugh, the differences in motivation: i.e., Dr Blasey Ford had nothing to gain by coming forward with her allegation while Judge Kavanaugh had a lot to lose by not strenuously denying it, the evasions and apparent whoopers in Judge Kavanaugh’s testimony particularly on the subjects of his drinking habits and the meaning of phrases he wrote into his high school yearbook, the corroborating accounts by multiple persons who knew Judge Kavanaugh either in high school or college and observed heavy drinking or sexual misconduct, and the very real possibility that his strenuous denials were fueled by his lack of memory of the particular incident described by Dr Blasey Ford, both because of its insignificance to him at the time, and because of a memory lapse caused by excessive alcohol consumption.

Aside from the question of Judge Kavanaugh’s guilt or innocence however, what I found particularly insufferable was the sense of wounded righteousness coming from both Judge Kavanaugh himself and the Republicans on the Committee. In his opening statement Judge Kavanaugh indignantly accused Chuck Schumer, the Democratic majority leader, of vowing to “oppose me with everything he’s got,” as if that was so very uncalled for and unfair. This and similar comments from Democrats were cited with the kind of outrage usually reserved for accusations of criminal behavior regardless of whether they are false or true. But as I hope the above history has demonstrated, strenuous opposition to his nomination by Democrats should not have come as a surprise to Kavanaugh. Nor should its source have been particularly mysterious. If he had thought about it for just a moment he would have found it very easy to understand. The Supreme Court was no longer the non-partisan, independent body of 100, 50, or even 20 years ago. The President who appointed him had made appointments to the Supreme Court a central issue of his political campaign, had published a list of the only nominees he would consider, and had likely won hundreds of thousands if not millions of votes from one-issue voters because of this. Kavanaugh himself was hardly a non-partisan figure. He had been a key figure in the impeachment of Bill Clinton, pushing so hard to be allowed to interrogate Bill Clinton with a battery of very explicit sexual questions that he had to be restrained by other members of Ken Starr’s staff. As he himself declared in his opening statement, but with a very different and self-justifying meaning in mind, “As we all know in the United States political system of the early 2000s, what goes around comes around.” And although he appeared not to understand it, it had indeed “come around” for him. Given Judge Kavanaugh’s record, both during the Clinton impeachment and during his tenure in the Bush administration, when among other things he was in receipt of information illegally purloined from the computer of Judiciary Committee Democrats, it is not surprising that he was zealously opposed by Democrats, including the Minority Leader. In fact if Schumer had not opposed him with “everything he’s got” he would have been guilty of political malpractice. The very act of blaming only the Democrats for their opposition to him, strangely omitting any reference to his own highly partisan past, or to the treatment accorded Merrick Garland and its influence on 2016 political campaign, a campaign which culminated for him in his own elevation to a Supreme Court seat he was tearfully claiming as rightfully his, only confirmed the worst fears of those very same Democrats: that he is “constitutionally” partisan and incapable of judging things from any side but his own.

While Judge Kavanaugh was blasting the Democrats for their statements opposing his confirmation, a dark money political group, the Judicial Crisis Network, founded in 2004 with the specific purpose of advancing a right-wing legal agenda by running “issue ads” to influence judicial appointments, was busy spending millions of dollars running ads targeting vulnerable Democratic Senators in Indiana, North Dakota, and West Virginia, accusing them of “taking marching orders” from liberals, and pressuring them to vote in favor of his confirmation. Kavanaugh’s tirade against the political opposition to his nomination omitted any mention of this of course. But the fact remains: on his behalf millions of dollars were being spent by such right-wing pressure groups, which existed for the sole purpose of exerting political pressure to pack the judiciary with nominees who could be counted on to advance a right-wing political agenda. Even the name “Judicial Crisis Network”, which is hardly less descriptive of the aims of this dark money advocacy organization than its original name of “Judicial Confirmation Network”, gives the game away. The underlying assumption being that an independent judiciary with no allegiance to a particular right-wing agenda constitutes a “crisis”. Kavanaugh’s performance, with his claim to find the political opposition from Democrats to his confirmation most shocking was at best highly disingenuous; at worst it was thoroughly dishonest. After his unprecedentedly partisan tirade, his confirmation to the Court would be another long step to its total politicization.

Kavanaugh’s 1982 Calendar: damning!

David Posnett — Fri, 28 Sep 2018 19:48:39 +0000

“go to Timmy’s for [Brew]skis (beer) with Judge, Tom, PJ, Bernie, Squi”

(Provided by Brett Kavanaugh to the Senate Judiciary Committee)

During Thursday’s dramatic questioning of Supreme Court nominee Brett Kavanaugh, he was quizzed repeatedly about the calendars he provided to bolster his case that he didn’t assault Christine Blasey Ford while a high school student in 1982.

Ford alleges that she attended a party at someone’s home that summer, where, she alleges, Kavanaugh and his friend Mark Judge pushed her into a bedroom and locked the door and where Kavanaugh then began to try to remove her clothes. Among the others at the party, Ford alleged, was another friend of Kavanaugh’s named P.J. Smyth. Kavanaugh denies the allegation and told Fox News’ Marth MacCallum that while he might have met Ford, he didn’t know her. Judge said in a statement that he doesn’t remember any such party. Smyth made a similar statement.

It was Kavanaugh’s hope that providing those calendars would show that he attended no such gathering. He insisted, in his testimony Thursday, that any party of the sort must have been on a weekend (since he and his friends had jobs) and that the calendars showed that essentially all of the weekends were booked with other activities. (His friend Mark Judge, in a memoir about his past drinking problem, wrote that this wasn’t a concern of his: He’d regularly show up at work hung over or drunk.)

Rachel Mitchell, hired by the Republican majority of the Senate Judiciary Committee to navigate the questioning of Kavanaugh and Ford, pointed to one particular calendar entry that got some attention after the calendars came out. It read:

Tobin’s House — Workout / Go to Timmy’s for Skis w/ Judge, Tom, PJ, Bernie, Squi

The reference to “skis” is apparently to “brewskis,” or beers. The entry was July 1, a Thursday. Mitchell asked him about it.

MITCHELL: The entry says, and I quote, go to ‘Timmy’s for skis with Judge, Tom, P.J. Bernie and … Squi?’

KAVANAUGH: Squi. It’s a nickname.

MITCHELL: To what does this refer, and to whom?

KAVANAUGH: [after explaining the “Tobin’s House” part] It looks like we went over to Timmy’s. You want to know their last names, too? I’m happy to do it.

MITCHELL:If you could just identify: Is ‘Judge’ Mark Judge?

KAVANAUGH: It is. It’s Tim Gaudette, Mark Judge, Tom Kaine, P.J. Smyth, Bernie McCarthy, Chris Garrett.

Notice two things here. First, that “Squi” was in attendance at the party — someone who, we learned thanks to Mitchell’s questioning of Ford, was going out with Ford over the course of that summer. Second, notice those two other attendees, one of whom Mitchell highlighted: Mark Judge and P.J. Smyth.

Mitchell’s questioning continued.

MITCHELL:Did you in your calendar routinely document social gatherings like house parties or gatherings of friends in your calendar?

KAVANAUGH: Yes, it certainly appears that way, that’s what I was doing in the summer of 1982. You can see that reflected on several of the– several of the entries.

MITCHELL: If a gathering like Dr. Ford has described had occurred, would you have documented that?

KAVANAUGH:Yes, because I documented everything, those kinds of events, even small get-togethers. August 7 is another good example where I documented a small get-together that summer. So yes.

During her testimony, Ford made clear that the event at which she says she was assaulted was a casual get-together before the others (who were older than her and had a later curfew) went to other, bigger parties. Kavanaugh says that the gathering at Timmy’s on July 1 was essentially that.

We noted Thursday, too, that the time frame of this July 1 party fits with Ford’s testimony. She says that six to eight weeks after the alleged assault, she saw Judge working at a store in the area. Judge’s book indicates that he was working at that store for several weeks in early to mid-August.

This is a central point to Ford’s allegation. Kavanaugh denies knowing her, denies being at a party with her. Here is an event in July where he was with several long-standing friends, two of whom were named by Ford and one of whom she’d been going out with.

But Mitchell’s next question completely fumbles the point.

MITCHELL:Have you reviewed every entry that is in these calendars of May, June, July and August of 1982.

KAVANAUGH:I have.

MITCHELL:Is there anything that could even remotely fit what we’re talking about in terms of Dr. Ford’s allegations?

KAVANAUGH: No.

That was it. Mitchell changed the subject.

There were all sorts of ways that Mitchell could have pressed the issue. How, for example, might Ford have been able to identify by name two of Kavanaugh’s close friends if she didn’t know him or had barely met him? Why isn’t it possible that this July 1 get-together was precisely the sort of event at which Ford alleges she was assaulted? That more than remotely fits the allegation? But she didn’t ask.

Mitchell had been stepping in for Republican senators during the day’s questioning, a tactic that helped the majority avoid the spectacle of men grilling a woman about an attack she says she experienced. There was no break in that pattern — until the July 1 question. After that series of questions, Mitchell didn’t speak again.

Update: On Friday morning, Sen. Sheldon Whitehouse (D-R.I.) outlined the points above. Sen. Charles Grassley (R-Iowa), the chairman of the committee, responded by noting that the calendar indicates that there were at least seven boys at the party, while Ford’s allegations only mentioned four.

Ford addressed the number of attendees during her testimony on Thursday, also responding to a question from Mitchell.

“I can’t guarantee that there weren’t a few other people there,” Ford said, “but they are not in my purview of my memory.”

Comment (D. Posnett): It is interesting. to see what our congressman, Lee Zeldin, thinks of Brett Kavenaugh. Thanks to David Friedman for this:

Are We Done Shooting Ourselves In The Foot Yet?

David Posnett — Thu, 28 Jun 2018 14:59:12 +0000

Justice Anthony Kennedy is retiring. Donald Trump gets to pick his successor. While the Senate engages in a debate about hypocrisy and whether or not to bring that nomination to the floor for a vote, nothing less than the character and identity of America is at stake.

So, yeah, we are pretty screwed at the moment. November is truly our only shot to stop the bleeding.

The only way out is for opposition to remain united. Problem is, progressives spend as much time arguing with each other as they do attacking the right. Then there are people who simply remain in the dark because of the usual pitiful excuses “I have a job,” or “I’m just trying to raise my famly,” and other such tripe. Or they have no confidence in government (a conservative goal all along).

Lower your expectations. Let not the perfect be the mortal enemy of the good (or, in this case, the “not horrifyingly bad”). America is in a traumatic state. Our democracy is bleeding. When treating a trauma patient, you must first stop the bleeding. Trying to repair the broken bones before you stem the flow of blood and you will wind up with a dead patient.

And if you manage to save the patient, and splint those broken bones, don’t expect the patient to run a fucking sprint any time soon. Healing takes time.

Forget “Medicare for all.” We are staring down the barrel of “Medicare for none.”

Forget funding for Planned Parenthood, we are facing the criminalization of abortion in multiple states.

Until progressives wise up about those, and other matters of ideological purity, we will continue to be outmaneuvered by the right.

So I don’t care if the candidate is the next coming of Bernie Sanders or a guy like Conor Lamb. We need every single blue seat we can get.

First stop the bleeding.

Liability for local law enforcement choosing to work with ICE

David Posnett — Sat, 31 Mar 2018 21:56:56 +0000

Police Chief Suspended for Exposing Illegal Aliens Employed at Local Plants

A brand new report points to the legal liabilities for local government that choose to enforce Federal Immigration Laws.

What is remarkable is that the 13-page report is authored by representatives of 5 organizations: 1) American Immigration Council; 2) American Immigration Lawyers Association; 3) National Immigrant Justice Center; 4) National Immigration Law Center; and 5) Southern Poverty Law Center.

The 13 page report makes 4 major points:

ICE detainer requests (Form I-247A) constitute a “new arrest” under the 4th Amendment of the Constitution: an additional custody of 48 h after the subject would normally be released. An ICE detainer does not provide local law enforcement with the authority they need to undertake an arrest. This is supported by a ruling in Feb. 2018 by the US District Court in California (Roy vs. County of Los Angeles), and a ruling of Massachusetts’ highest court (Lunn vs. Commonwealth).
Immigration and Nationality Act. ICE routinely cajoles local law enforcement to undertake detainer arrests, under the guise that such detainers were envisioned by Congress in the Immigration and Nationality Act. This claim, however, contradicts the historic detainer practice, which Congress codified in 1986—namely that “de-tainers” were solely intended as a tool to notify of anticipated release, not an authorization or request to continue detention.
Each of ICE’s historical detainer options is illegal.
– “Secure Communities” initiated under Bush in 2008: information sharing between databases where every fingerprint submission to the FBI is automatically shared with ICE; ICE then conducts a cursory investigation of every individual with a reported foreign place of birth and determines whether to issue a detainer! The program led to racial profiling and resulted in countless cases of unlawful detention of American citizens. Lawsuits were filed across the country. Program discontinued November 2014.

– Priority Enforcement Program (PEP): While fewer detainers were issued, the forms continued to request that local law enforcement engage in unlawful civil arrests.

– Reinstatement of “Secure Communities”; March 2017 detainer policy,

requiring that ICE accompany the issuance of a detainer with an “administrative warrant” signed by an ICE officer (either Form I-200 or Form I-205) and affirming probable cause of removability. Does nothing to cure local law enforcement’s lack of legal authority to make an immigration arrest. These warrants are not reviewed by a neutral magistrate to determine if they are based on probable cause as required by the Fourth Amendment, nor do they provide any evidence of suspicion of commission of a new criminal offense.

– In June 2017, Sheriff Bob Gualtieri of Pinellas County, Florida, wrote to the presidents of the National Sheriffs’ Association and the Major County Sheriffs of America. He proposed that local law enforcement (1) enter into a cooperative agreement with ICE known as a 287(g) agreement; or (2) contract with ICE for the detention of non-citizens by entering into an Inter-Governmental Service Agreement (IGSA). However, local officers who wrongfully issue and enforce detainers under the 287(g) program remain liable for the constitutional and legal violations those practices entail. IGSAs are contracts between local entities and the federal government for local entities to receive payments to provide bed space, but do not give authority to local law enforcement to take people into custody.

– Basic Ordering Agreements & the Form I-203. (January 25, 2018) 17 county sheriffs in Florida announced a new mechanism put forward by ICE: each jurisdiction agrees to hold individuals pursuant to ICE detainers for up to 48 hours and receive a $50 reimbursement from ICE. ICE will accompany a detainer with Form I-203, an administrative form used by ICE to track those in its custody. A BOA is not a contract, and neither the BOA nor the Form I-203 obligates the jail to honor any particular detainer. ICE claims these new agreements give localities “liability protection from potential litigation”. Nothing about the BOA mitigates the constitutional problems and lack of arrest authority that accompany detainer compliance. Despite ICE claims that use of a BOA will protect localities from liability, there is no actual statute protecting the local jails from litigation and ICE has not offered to indemnify local officials.
Entanglement with ICE carries risks outside the legal realm. This is arguably the most important and threatens everyone’s security. When states and localities are, or are perceived to be, participating with ICE, immigrants and the rest of us grow increasingly afraid of local police. We all know this is happening.