Kavanaugh2 Bak

esrb 9 25

kavanaugh519

SEE MAIN

MERRI OK

see opus dei JCN LEO etc

POW Pol Op starr BS

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silberman clerks = "the cabal"? feeder to clarence et al?

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AN 9? 26

MAGA influencers turn on Kavanaugh: 'The death of America is on him'

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AN 8 26

More often than not, the U.S. Supreme Court's 6-3 right-wing supermajority has been favorable to President Donald Trump's positions — from presidential immunity in Trump v. the United States to overturning Roe v. Wade with Dobbs v. Jackson Women's Health Organization. But Trump remains bitter over High Court decisions that weren't favorable to him, angrily railing against rulings on tariffs and birthright citizenship and looking for ways to get around rulings he doesn't like. And according to Slate's Alex Romero, Justice Brett Kavanaugh — the second of three conservative justices Trump appointed during his first term — helped pave the way for the president's defiance of SCOTUS.

"Last week," Romero explains in analysis for Slate, "President Donald Trump continued his defiant stance against the Supreme Court's birthright citizenship decision from earlier this summer, firing off two new executive orders about which people born in the U.S. should be declared citizens. Despite losing at the Supreme Court on the legal issue in late June, the Trump administration remains committed to twisting a long-settled constitutional question into a tool to keep Black and brown people out of American life. The conservative legal movement, at first skeptical of Trump's original executive order attacking birthright citizenship, has now fully embraced the cause. And the cause's survival can all be traced back to our Supreme Court's unwillingness to give the Trump administration the overwhelming legal defeats it deserves."

In Trump v. Barbara, the High Court struck down the president's executive order on birthright citizenship, which most of the justices said was protected by the U.S. Constitution's 14th Amendment. But many liberals and progressives, along with some right-wing Never Trump conservatives and libertarians, argued that the ruling could have been much more emphatic — and that it was way too close for comfort.

"It's not unusual for President Trump to try to ignore or twist a legal ruling on an issue he lost on," Romero observes. "The better question is why he thinks the effort will succeed. After all, there are other areas where Trump has quietly retreated after a court loss or public outcry. The reason the president persists is that despite all this history, text, and precedent, only five of the nine justices read the 14th Amendment as protecting birthright citizenship in Barbara. The narrowness of that margin was and continues to be a scandal. Justice Brett Kavanaugh sided with Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito in saying they would rule that the Constitution does not protect birthright citizenship for children of immigrants who don't have permanent legal status or are temporary visitors."

Romero continues, "Kavanaugh, in a separate opinion joined by nobody, thought the executive order only contradicted a federal statute that Congress could change. Let's be clear: This Court was one vote away from doing Dred Scott for yet a new group of people who lack political power. All in defense of an order that has been rightly condemned as 'blatantly unconstitutional.' Barbara…. is also a symptom of a Court that operates in a lopsided manner that favors the administration. This is especially true in the immigration context."

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an 12 25

Conservative Supreme Court Justice Brett Kavanaugh appears to be backing away from his "racist immigration enforcement" ruling, which brought the phrase "Kavanaugh stop" into the lexicon. In a podcast segment from Tuesday, two legal experts torched the Trump-appointeefor giving "himself the gift of forgiveness," and said that removing his name from racist arrest practices is "never going to happen."

In September, Kavanaugh wrote in a ruling that the "apparent ethnicity" of Hispanic individuals could be a "relevant factor" for federal agents who decide to confront them about their legal status and demand proof of citizenship. This was widely criticized as the Supreme Court condoning racism and flying in the face of the Fourth Amendment's protections against unreasonable searches. Anil Kalhan, a law professor at Drexel University, dubbed these sorts of confrontations "Kavanaugh stops," a term that became increasingly common as news of federal agents harassing Latino individuals increased.

Now, in a ruling from earlier this month, Kavanaugh appeared to try and walk back that previous ruling. Writing in a concurrence to the Court's decision to block Trump from deploying the National Guard to Illinois, the justice added a footnote stressing that race and ethnicity could not be considered by agents conducting "immigration stops or arrests." The overall case did not directly concern immigration arrests, so the note stood out to many observers, who considered an attempt to distance himself from the "Kavanaugh stops" moniker.

Discussing the concurrence on a Tuesday episode of Slate's law podcast, "Amicus," co-hosts Dahlia Lithwick and Mark Joseph Stern torched "this strange, tacit walk-back."

"It’s the icing on top of the Christmas cake that Brett Kavanaugh, in an unrelated discussion, gave himself the gift of forgiveness for his notorious 'Kavanaugh stops' opinion," Lithwick said.

"I think he is begging us to please cease and desist calling them 'Kavanaugh stops,'" Stern responded. "This footnote is buried in the opinion and doesn’t really have anything to do with it... Wow! Immigration stops can’t be based on race? What a concept! A concept that you, Brett Kavanaugh, rejected just a few months ago, in September, in the Vasquez Perdomo case. Back then, you wrote that immigration stops could be at least partly based on race or ethnicity, and that a person’s appearance as Latino could be one reason for them to be stopped by immigration officers."

He continued: "I think he is trying to rid 'Kavanaugh stops' from the discourse, which is never going to happen. And maybe he’s trying to send a message to the Trump administration to cool it down."

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AN 9 25

Justice Sonia Sotomayor had harsh words for the Supreme Court in her dissent in a ruling allowing Immigration and Customs Enforcement to continue to arrest people based on profiling Latinos working low-wage jobs.

Monday morning, the Supreme Court of the United States issued an emergency decision in Noem v. Vasquez Perdomo.The case concerns “Operation At Large,” which deployed ICE agents in the Los Angeles area to car washes, bus stops, farms and other locations believed to be frequented by Latino people who may or may not be undocumented immigrants. On July 11, the Central District Court of California ruled that ICE had to stop Operation At Large until appeals in the case could be heard.

The Court’s ruling contained no official explanation for the ruling, however Justice Brett Kavanaugh wrote a concurrence. In his concurrence, Kavanaugh said the law allowed ICE to “‘briefly detain’ an individual ‘for questioning’” if they have “a reasonable suspicion, based on specific articulable facts, that the person being questioned . . . is an alien illegally in the United States.”

Operation At Large, he said, represented “reasonable suspicion” to detain someone on the following factors: “(i) presence at particular locations such as bus stops, car washes, day laborer pickup sites, agricultural sites, and the like; (ii) the type of work one does; (iii) speaking Spanish or speaking English with an accent; and (iv) apparent race or ethnicity.”

IFrame Content

He added that “apparent ethnicity alone cannot furnish reasonable suspicion” but could be a “‘relevant factor,” and that if someone detained by ICE turned out to be a citizen, they would be “free to go after the brief encounter.”

Sotomayor disagreed that this is what was happening, citing what had happened to other citizens. Jason Gavidia worked at a Los Angeles tow yard that ICE stopped at. Agents repeatedly asked if he was a citizen. They then took his phone, pushed him against a metal fence, twisted his arm, and took away his identification, according to Sotomayor’s dissent.

“Other Operation At Large encounters have included even more force and even fewer questions. For example, agents pulled up in four unmarked cars to a bus stop in Pasadena; ‘the doors opened and men in masks with guns started running at’ three Latino men who were having their morning coffee, waiting to be picked up for work,” she wrote.

“In Glendale, nearly a dozen masked agents with guns ‘jumped out of . . . cars’ at a Home Depot, and began ‘chasing’ and ‘tackl[ing]’ Latino day laborers without ‘identify[ing] themselves as ICE or police, ask[ing] questions, or say[ing] anything else.’ In downtown Los Angeles, agents ‘jumped out of a van, rushed up to [a tamale vendor], surrounded him, and handled him violently,’ all ‘[w]ithout asking . . . any questions.'”

Sotomayor concluded that Operation At Large and the Court’s decision “all but declared that all Latinos, U. S. citizens or not, who work low wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agents’ satisfaction.”

She also condemned the court for not issuing an explanation beyond the concurrence. She alleged that the Court had been eager to “circumvent the ordinary appellate process” when it comes to President Donald Trump and his administration.

“Some situations simply cry out for an explanation, such as when the Government’s conduct flagrantly violates the law,” Sotomayor wrote, adding that Operation At Large and the Court’s ruling clearly violates the Bill of Rights.

“The Fourth Amendment protects every individual’s constitutional right to be ‘free from arbitrary interference by law officers.’ After today, that may no longer be true for those who happen to look a certain way, speak a certain way, and appear to work a certain type of legitimate job that pays very little. Because this is unconscionably irreconcilable with our Nation’s constitutional guarantees, I dissent,” she wrote.

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an 10 24

'Embarrassment': Politico review assails conservative Supreme Court justice’s new book

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an 10 24 badash

A years-long investigation by a top Senate Democrat of the FBI’s 2018 supplemental background investigation into multiple allegations of sexual misconduct by Brett Kavanaugh, in the middle of his confirmation to the U.S. Supreme Court, finds the Trump White House and then-President Donald Trump himself engaged in a “sham” process to ensure the nominee was placed on the nation’s highest court.

“New report details how the Trump White House restricted FBI investigators and lied to the American people about the investigation and tip line. Six-year-long Senate inquiry was hampered by repeated executive branch obstruction,” reads the introduction to the 32-page report by U.S. Senator Sheldon Whitehouse (D-RI), the chair of the Senate Judiciary Subcommittee on Federal Courts and one of the leading advocates for Supreme Court reform.

“In 2018, I pledged to Christine Blasey Ford that I’d keep digging, for however long it took, and not give up or move on from the Trump White House’s shameful confirmation process for Justice Kavanaugh,” Senator Whitehouse says. “A full, proper investigation is the bare minimum that victims who come forward – like Dr. Ford and Deborah Ramirez – deserve. This report shows that the supplemental background investigation was a sham, controlled by the Trump White House, to give political cover to Senate Republicans and put Justice Kavanaugh back on the political track to confirmation.”

Dr. Ford was Kanvanaugh’s main accuser. She had confidentially told her Congresswoman, U.S. Rep. Anna Eshoo (D-CA) and later, U.S. Senator Dianne Feinstein (D-CA), who was the Ranking Member on the Senate Judiciary Committee, that in high school Kavanaugh had sexually assaulted her. A lie detector test administered by a former FBI agent found Dr. Ford to be truthful.

Senator Whitehouse’s report finds:

“The FBI’s supplemental background investigation concluded on October 4. Despite credible allegations from two different women, hundreds of witness leads and tips the FBI received, and the high stakes of a life-tenured Supreme Court nomination, the FBI ultimately interviewed only ten people.”

“The supplemental background investigation was completely controlled by the Trump White House. The FBI was never given ‘free rein’ to conduct a thorough, complete investigation. Statements to the contrary from former President Trump and White House and Department of Justice officials were false.”

“The investigation was directed by the Trump White House to pursue only first-hand evidence and not corroborating evidence. Senate Republicans then cited the absence of corroborating evidence to justify confirming Kavanaugh.”

Pointing to this “absence of corroborating evidence,” The Washington Post reports it “was cited by senators as they narrowly voted to confirm Kavanaugh, marking a major triumph for the conservative movement and locking in a right-leaning majority that would later overturn the constitutional right to abortion.”

But among the most-damning facts Senator Whitehouse’s report reveals is the “FBI’s public ‘tip line’ investigation was a fake. No tip was ever investigated; Kavanaugh-related tips were delivered straight to the Trump White House without FBI investigation. Indeed, the Trump White House could have used tip line information to steer FBI investigators away from derogatory evidence.”

That fact was confirmed and made public in 2022 during sworn Senate testimony by FBI Director Chris Wray to Senator Whitehouse, on which NCRM reported at the time (video below).

“So when it comes to the tip line, we wanted to make sure that the White House had all the information we had, so when the hundreds of calls started coming in, we gathered those up, reviewed them and provided them to the White House —” Director Wray said.

“Without investigation,” Sen. Whitehouse interjected.

“We reviewed them and then provided them —” Wray replied.

“You reviewed them for purposes of separating from tipline traffic, but did not further investigate the ones that related to Kavanaugh, correct?” Sen. Whitehouse asked.

“Uh, correct,” Wray responded.

Professor of law, MSNBC/NBC News legal analyst, and former U.S. Attorney Joyce Vance responded to news of Tuesday’s report: “A different FBI Director might have resigned in protest: The report found messages to the FBI tip line regarding Kavanaugh were forwarded to the WH & never probed.”

The Post notes that at the time, Trump “vowed that the FBI would have ‘free rein’ to vet the claims. Trump said the FBI was ‘talking to everybody’ and added on social media: ‘I want them to interview whoever they deem appropriate, at their discretion.'”

That apparently was a lie.

The Post reports, “the White House never authorized the agency to independently probe the sexual misconduct allegations.”

In fact, the FBI never interviewed Dr. Ford or Brett Kavanaugh, who at the time of his nomination to the Supreme Court was a federal appeals court judge, as part of its supplemental investigation.

Sen. Whitehouse’s report also reveals there did not seem to be anyone at the FBI actually working on the investigation.

“Democratic members of the Senate Judiciary Committee also individually contacted the FBI to provide names of people with potentially corroborating or otherwise relevant information who had reached out after trying—but failing—to get in touch with FBI investigators. Some of these individuals, including Max Stier, a college classmate of Kavanaugh’s, contacted Senator Coons after they had ‘difficulty reaching anyone’ at the FBI who would ‘collect their information.’ Senator Coons wrote directly to Director Wray to request ‘appropriate follow up’ with Stier in particular. Ultimately, many people were referred or resorted to the agency’s online and telephonic ‘tip line,’ which did not result in any follow-up from the FBI.”

After Kavanaugh’s confirmation hearing but before the vote that would end up placing him on the Supreme Court, MSNBC’s Rachel Maddow reported, “Kavanaugh may have lied to the Senate, pretty extensively, in order to obtain the currency that he already has on a federal appeals court.”

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9 24 the lever podcast series rise of the mach

CBG comm for justice 2002 rove trent lott attack ads

trailer: Master Plan | Listen Now

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bush v gore democ labs

Supreme Court has three lawyers who worked on Bush v. Gore

Justices Clarence Thomas voted to suspend the vote count in Florida that ended up with George Bush Jr. as president. Three other justices worked on the Bush team including John Roberts, Brett Kavanaugh and Amy Comey Barrett. All three were later appointed to the Supreme Court! Roberts was appointed by Bush

...

Kavanaugh. Presidential protector.

"Kavanaugh is a former Bush lieutenant who was not only a lawyer in the Florida recount of 2000, but inherited the pivotal job of staff secretary to the president. Legal experts see Kavanaugh as a presidential protector: He has radical views of executive power and privilege and has repeatedly raised doubts about whether presidents are accountable to other branches of government. This deference to presidential power is also a key reason Kavanaugh won the backing of President Trump. In his confirmation hearings, Kavanaugh pointedly refused to comment on whether a sitting president must respond to a subpoena or has the power to pardon himself." - Rolling Stone

Rewarded by George Bush. George Bush nominated Kavanaugh in 2003 for the United States Court of Appeals for the District of Columbia Circuit...

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https://www.alternet.org/brett-kavanaugh-2662280110/

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sec HOPES kAV WILL OVERTURN MORE CONSERV 5TH CIRCUIT? ALITO?

3/24 hope that prev ruling with block some fuckery? trump immunity?

circuit Assignments

It is ordered that the following allotment be made of The Chief Justice and the Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, Section 42 and that such allotment be entered of record, effective September 28, 2022.

For the District of Columbia Circuit - John G. Roberts, Jr., Chief Justice
For the First Circuit - Ketanji Brown Jackson, Associate Justice

> (Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island)

For the Second Circuit - Sonia Sotomayor, Associate Justice> (Connecticut, New York, Vermont)
For the Third Circuit - Samuel A. Alito, Jr., Associate Justice> (Delaware, New Jersey, Pennsylvania, Virgin Islands)
For the Fourth Circuit - John G. Roberts, Jr., Chief Justice> (Maryland, North Carolina, South Carolina, West Virginia, Virginia)
For the Fifth Circuit - Samuel A. Alito, Jr., Associate Justice> (Louisiana, Mississippi, Texas)
For the Sixth Circuit - Brett M. Kavanaugh, Associate Justice> (Kentucky, Michigan, Ohio, Tennessee)
For the Seventh Circuit - Amy Coney Barrett, Associate Justice> (Illinois, Indiana, Wisconsin)
For the Eighth Circuit - Brett M. Kavanaugh, Associate Justice> (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota)
For the Ninth Circuit - Elena Kagan, Associate Justice> (Alaska, Arizona, California, Guam, Hawaii, Idaho, Oregon, Montana, Nevada, Northern Mariana Islands, Washington)
For the Tenth Circuit - Neil M. Gorsuch, Associate Justice> (Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming)
For the Eleventh Circuit - Clarence Thomas, Associate Justice> (Alabama,Florida, Georgia)
For the Federal Circuit - John G. Roberts, Jr., Chief Justice.

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an badash

it’s being called a “surprise decision,” a “landmark win,” and a “a major victory for the Voting Rights Act (VRA),” but some legal experts are warning that heralding the U.S. Supreme Court’s Thursday decision as anything except upholding the status quo is a mistake, and other experts suggest it means the Court’s earlier rulings wrongly threw control of the House of Representatives to Republicans. Some experts say a Democratic-majority House in 2024 is now more likely.

In short, in its 5-4 decision in Allen v. Milligan, the Supreme Court ruled that the state of Alabama discriminated against Black voters, which make up a quarter of its population, by drawing congressional maps to exclude them.

Slate’s Mark Joseph Stern, who writes about law and the courts, exclaimed, “WHOA!” as he explained: “The Supreme Court’s final decision of the day is a 5–4 ruling that AFFIRMS the Voting Rights Act’s protection against racial vote dilution! Robertsand Kavanaugh join the liberals. This is a HUGE surprise and a major voting rights victory.”

Democracy Docket, the website founded by Marc Elias, the voting rights attorney who won 63 of the 64 court cases Donald Trump and his allies filed to contest the 2020 presidential election, also served up a similar response on social media, calling it “a massive victory for voting rights.”

On its website, Democracy Docket calls it “an overwhelming win for Alabamians, specifically Black voters, whose voting power was found to be diluted under the current congressional map. Importantly, the conservative Supreme Court did not make the drastic decision to strike down Section 2 of the VRA, leaving an important tool in voting rights litigation in place.”

It adds the Supreme Court’s decision in Allen v. Milligan “leaves Section 2 of the Voting Rights Act (VRA) intact and, in a landmark win for voters, struck down the state’s congressional map. The majority opinion, written byChief Justice John Roberts, is joined by Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson and joined in part by Justice Brett Kavanaugh.”

Democracy Docket also notes the decision “will have major positive implications for outstanding redistricting lawsuits.”

Stern agrees, writing: “It’s a boon to Democrats’ chances of retaking the House in 2024. The Supreme Court had blocked multiple lower court rulings striking down congressional maps that diluted Black voting power. At least some of those rulings should now be implemented.”

Democracy Docket adds: “The Court’s decision in Allen likely means that litigation challenging Louisiana’s congressional map can move forward and paves the way for a favorable outcome for Louisiana voters. Louisiana’s situation directly mirrors Alabama’s. In both states, voting rights advocates argued that a second majority-Black congressional district is needed to ensure compliance with the VRA. The Supreme Court paused Louisiana’s litigation pending a decision in Allen.”

Dave Wasserman, U.S. House editor of the nonpartisan Cook Political Report calls the decision “a major surprise,” and says: “This could reverberate to LA, SC and/or GA, forcing creation of 2-4 new Black majority districts and netting Dems 2-4 seats” in the House.

Wasserman, known for his keen knowledge of congressional districts and iconic “I’ve seen enough” early and accurate predictions of House election races, offered this view of how the Court’s decision could impact current districts:

“The Alabama Republicans in most jeopardy owing to the SCOTUS ruling: Reps. Jerry Carl (R) #AL01, Barry Moore (R) #AL02 and Mike Rogers (R) #AL03. Moore could be squeezed the most in any map reconfigured to feature a second Black majority seat.”

University of Texas law professor Steve Vladeck, author of a book on the Supreme Court, “The Shadow Docket,” offers up a stinging reminder of how the Court has damaged voting rights and helped Republicans in the process:

“If you assume that additional majority-minority districts in Alabama, Georgia, Louisiana, & 1–2 other states would’ve been safe Democratic seats, then today’s #SCOTUS ruling strongly suggests that the Court’s 2022 shadow docket stays [decisions/rulings] wrongly gave Republicans control of the House.”

Professor of law Anthony Michael Kreis, pointing to Vladeck’s remarks, adds: “there’s a House majority built on discriminatory lawlessness.”

Also taking note of Thursday’s SCOTUS ruling: House Democrats. Axios’ Andrew Solender reports House Democratic Minority Leader Hakeem Jeffries’ office is “inviting Dem[ocratic] congressional staff to a Friday briefing on recent Supreme Court cases, including the Alabama congressional map case.”

Meanwhile, the well-known NYU professor of law, Melissa Murray, is stepping in to properly frame reactions to what she sees as the Court’s “weak sauce” decision on the Voting Rights Act.

“Some initial thoughts on Allen v. Milligan,” she writes on Twitter. “Media is trumpeting this as a ‘victory’ for the Voting Rights Act. And it is. And I don’t want to be a turd in the punchbowl… but this is pretty weak sauce from this Court.”

Professor Murray says, “this doesn’t ‘strengthen’ the VRA. It preserves the status quo. And the status quo is that this Court has done an A+ job of hobbling the VRA over the last 10 years.”

Murray offers up some quick historical background.

“In 2013’s Shelby County v. Holder, it eviscerated the preclearance formula. The preclearance regime required states with a history of voting discrimination to first ‘preclear’ any changes to their voting rules and regs with the DOJ or a three-judge federal court panel.”

“The Court invalidated the preclearance formula on the ground that progress had been made and minorities were voting and blah blah blah,” she notes. “This progress narrative prompted RBG [the late Justice Ruth Bader Ginsburg] to note in dissent that throwing out the preclearance formula was like throwing out your umbrella in a rainstorm because you weren’t getting wet. She was right.”

Murray also refers to a number of other cases along the way that weakened voting rights.

“So, yes,” she concludes, “today’s decision is a victory that maintains the status quo for Section 2 of the VRA. But it is cold comfort when one considers the way this Court through its decisions has actively distorted the electoral landscape and made true representative government more elusive.”

The Economist’s Supreme Court reporter Steven Mazie, calls Prof. Murray’s remarks, “Crucial zoomed-out context for today’s Voting Rights Act ruling. The 5-4 is a surprise, and it’s a victory—but after a long string of losses, today’s win amounts to…not losing YET MORE voting protections for people of color.”

The Nation’s justice correspondent, Elie Mystal, offers a bit of a more compact and down-to-earth response: “A way to understand what just happened with Roberts and Kav[anaugh] in the Voting Rights Case is that it’s not going to change much in terms of Alabama’s racist maps. This cost them little,” he says. “The *victory* is that these fools could have straight killed Section 2 of the VRA, but didn’t.”

FROM YOUR SITE ARTICLES

RELATED ARTICLES AROUND THE WEB

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sen sex report fail

https://www.alternet.org/Bank/2659926036/

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tom b raw an 5 23

reacting to a blunt-talking concurring opinion submitted by Supreme Court Justice Brett Kavanaugh taking on the ruling authored by colleague Sam Alito, Loyola Law School Professor Jessica Levinson suggested in a new column for MSNBC there is the makingsof a schism developing within the conservative majority court.

At issue was the court severely limiting the ability of the government to enforce the Clean Water Act, with Kavanaugh agreeing with the ultimate decision, but siding with the liberal wing in pointing out that the court is making law instead of interpreting it.

According to Levinson, the court's ruling was an egregious assertion of the court's authority and "the court’s ruling isn’t merely practically pernicious for those who care about the environment; it is legally wrong."

As she notes, the conservative wing of the court continually emphasizes that they are jurists and not elected lawmakers and, surprisingly, Kavanaugh reminded Alito of that in the text of his concurrence.

"It is unusual for Kavanaugh to break with his conservative colleagues, and the fact that he did so here shows us how truly baseless the court’s reasoning is," she suggested before explaining, "Kavanaugh’s concurring opinion explains why the court’s interpretation of the text of the Clean Water Act is fundamentally unmoored from the text itself. To use his words, 'the Court is imposing a restriction nowhere to be found in the text.'"

"The question before the court in this case was which wetlands are considered to be 'adjacent' to a body of water covered by the act, and therefore itself protected by the act," she wrote. "While the court’s ultimate decision was unanimous, its reasoning was splintered. A thin five-member majority of the court, defying basic rules of legal interpretation, concluded that 'adjacent' means 'adjoining.'"

As she notes Kavanaugh pointed out that the court went out of its way to ignore the obvious meanings of the words involved.

"Kavanaugh tells us exactly why Justice Alito got it wrong, as well: his interpretation goes against the 'ordinary meaning' of the word 'adjacent' and the 'longstanding agency practice' of the Army Corps.Referring to dictionaries for the plain and ordinary meaning of the word adjacent, Kavanaugh notes, 'the definitions of "adjacent" are notably explicit that two things need not touch each other in order to be adjacent,'" she elaborated.

According to Levinson, Kavanaugh was being brutally blunt with Alito and his other conservative colleagues when he wrote, "I would stick to the text.”

"These six words are nothing less than the judicial version of a grenade," the law professor wrote before adding, "Kavanaugh is essentially reminding the majority that they had one job, and one job alone, when interpreting a federal law: to follow the text. They failed to do so. We will live with the practical and legal consequences of that failure for years to come."

You can read her whole column here.

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Revealed: Senate investigation into Brett Kavanaugh assault claims ... ›

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https://www.alternet.org/chevron-doctrine/

no lnx twt

'Judicial power grabs': US Supreme Court puts Chevron doctrine 'squarely in the crosshairs'

Brett Wilkins and Common DreamsMay 01, 2023

The U.S. Supreme Court said Monday it will hear a challenge to a nearly 40-year administrative law precedent under which judges defer to federal agencies' interpretation of ambiguous statutes—a case that legal experts warn could result in judicial power grabs and the gutting of environmental and other regulations.

The Supreme Court said it will take up Loper Bright Enterprises v. Raimondo—a case in which fishing companies are seeking to strike down the Chevron doctrine, named after the landmark 1984 Chevron USA v. Natural Resources Defense Council ruling that conservatives have long sought to overturn. The case is one of the most cited precedents in administrative law.

The Chevron doctrine involves a two-step process in which a court first determines whether Congress expressed its intent in legislation, and if so, whether or not that intent is ambiguous.

James Goodwin, a senior policy analyst at the Center for Progressive Reform, toldPolitico that Loper v. Raimondo has "the potential of being one of the most destabilizing decisions that this court has issued."

President Joe Biden's "environmental and energy agencies were already facing a heavily tilted playing field in the federal judiciary," Goodwin added. "I think eliminating Chevron... would make the prospects of surviving judicial review all the more daunting."

At issue in Loper v. Raimondo is whether the federal government can force herring fishers to fund a National Marine Fisheries Service program used to monitor their work. Two fishing companies argue that while the Magnuson-Stevens Act requires owners of fishing vessels to accommodate federal monitors onboard, the proprietors are not required "to pay the salaries of government-mandated monitors who take up valuable space on their vessels and oversee their operations."

The Biden administration's argument in favor of the Chevron doctrine leans heavily upon precedent.

"Federal courts have invoked Chevron in thousands of reported decisions, and Congress has repeatedly legislated against its backdrop," a brief filed by U.S. Solicitor General Elizabeth Prelogar and other officials in support of the doctrine notes. The brief adds that the Chevron doctrine "promotes political accountability, national uniformity, and predictability, and it respects the expertise agencies can bring to bear in administering complex statutory schemes."

In 2020, Justice Clarence Thomas wrote in Howard v. United States that "Chevron is in serious tension with the Constitution," while Justice Neil Gorsuch opined last year in Buffington v. McDonough that the doctrine "deserves a tombstone no one can miss."

"Overruling the Chevron doctrine, and undermining agencies and regulatory authority more broadly, has long been a hobbyhorse of Neil Gorsuch and other conservatives," legal journalist Christian Farias tweeted. "In a sense, the outcome of this case is foreordained. It's part of a continuing agenda."

Liberal Justice Kentanji Brown Jackson has recused herselffrom Loper v. Raimondo, explaining that she sat on the circuit court that initially heard the case.

"I still want to know how Ketanji Brown Jackson feels about all of this," Farias wrote. "Her insights are valuable: She was the vice chair of the U.S. Sentencing Commission, an agency that is given Chevron-like deference in some contexts. Making her sit this one out won't help."

RELATED ARTICLES AROUND THE WEB

Judicial deference and the future of regulation ›

Supreme Court to consider overruling Chevron doctrine | The Hill ›

Kavanaugh And The “Chevron Doctrine” - Legal Aggregate ... ›

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brett k kacz

https://www.alternet.org/supreme-court-abortion-2659833629/

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an 3 23

ten or 15 years ago, no one was using the term "major questions doctrine" in connection with the U.S. Supreme Court. The right-wing legal concept, which has been promoted by the Federalist Society and is now being embraced by the Roberts Court's Republican supermajority, argues, in essence, that if a presidential administration or a government agency wants to decide something of national importance, the action must have clear congressional authorization.

The New York Times' Adam Liptak examines the rise of the "major questions doctrine" in an article published on March 6, explaining why it is getting in the way of President Joe Biden's agenda.

"It has been only eight months since the Supreme Court first invoked the 'major questions doctrine' by name in a majority opinion, using it to limit the Environmental Protection Agency's power to address climate change," Liptak explains. "Last week, the Court seemed poised to use it again, to kill the Biden Administration's plan to cancel more than $400 billion in student loans."

Liptak goes on to discuss a 54-page study that was conducted by William & Mary Law School and published by the Social Science Research Network (SSRN) on March 2. William & Mary law professor Allison Orr Larsen, in the report, notes that the phrase "major questions" was "used just once by any federal judge before 2017, and in only five federal decisions — at any level of court — before 2020." Larsen also pointed out that the term "major questions" was heard at a Federalist Society gathering in 2016.

Liptak observes, "The turning point came in 2017, when Justice Brett M. Kavanaugh, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, used the term in a dissent…. Scholars have raised objections to the major questions approach, saying it had changed the rules in the middle of the game and had, in any event, placed unrealistic burdens on Congress."

According to Larsen, calling a legal idea a "doctrine" can increase its prominence — and that includes the major questions doctrine.

Larsen told the New York Times, "You study it for the bar exam. It gets its own section on the syllabus."[link to art?]

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https://www.alternet.org/supreme-court-2659319397/

brett all good here

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https://www.alternet.org/new-brett-kavanaugh-investigation-documentary/

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an 12 22 also gorka and?

On Friday night, November 9, U.S. Supreme Court Justice Brett Kavanaugh, according to Politico, attended a “private holiday party” in the home of Conservative Political Action Conference Chairman Matt Schlapp. Kavanaugh’s decision to attend, reporter Lydia Wheeler writes in Bloomberg Law on December 12, “raises questions about when a justice’s personal relationships cross a line and become problematic.”’

One of the other people who attended Schlapp’s party, according to Politico, was MAGA Republican Stephen Miller, who was a policy adviser for the Trump Administration. Miller heads the America First Legal Foundation, a group that, Wheeler notes, “has interests in cases now pending before the Court.”

Kavanaugh’s decision to attend Schlapp’s party comes at a time when the High Court is suffering from historically low approval ratings. The Court’s unpopularity to a variety of things, including its decision to overturn Roe v. Wade after 49 years in the case Dobbs v. Jackson Women’s Health Organization.

Other controversies that have dogged the High Court in recent months range from efforts by Ginni Thomas (wife of Justice Clarence Thomas) to overturn the 2020 presidential election results to allegations that Justice Samuel Alito or his wife leaked the Court’s decision in 2014’s Burwell v. Hobby Lobby before it was officially announced — an allegation that Alito has vehemently denied.

Wheeler notes that “Democrats have recently renewed calls for sitting Supreme Court justices to follow a formal judicial code of ethics.”

Tonja Jacobi, a professor at Emory University Law School in Atlanta, told Bloomberg Law, “Supreme Court justices should be extraordinarily careful in not only having no actual ethical difficulties, but having no appearance of an ethical conundrum as well…. The legitimacy of the Court at the moment is taking a severe beating.”

Charles Geyh, a professor at Indiana University’s Maurer School of law, implied that Kavanaugh was showing very poor judgement by attending Schlapp’s party. Geyh told Bloomberg Law, “This is the worst possible time for this.”

===

8 22 an

FBI Director Chris Wray admitted in a Senate hearing on Thursday that the FBI forwarded to the White House the hundreds of tips it received about Brett Kavanaugh in the fall of 2018, during his Supreme Court confirmation process, but did not first investigate those tips. Kavanaugh had been credibly accused of sexual misconduct by three women, and those accusations threatened to derail his confirmation.

The revelation came as the FBI Director was questioned by Senator Sheldon Whitehouse during a Judiciary Committee hearing, and was forced to admit that the Democratic Senator from Rhode Island was “correct” when he said the FBI “did not further investigate” the tips it received “that related to Kavanaugh” and were forwarded to the White House.

After multiple women accused then-Judge Kavanaugh of sexual misconduct during his confirmation process the Judiciary Committee agreed to temporarily halt its confirmation hearings until a supplemental FBI background investigation could be conducted.

On Thursday Senator Whitehouse asked Wray, “is it true that after Kavanaugh-related tips were separated from other tips, they were forwarded to White House counsel without investigation?”

Wray appeared to try to circumvent the direct question.

“I apologize in advance that it’s been frustrating for you,” Wray began. “We’ve tried to be clear about our process,” he claimed.

Sen. Whitehouse interjected, asking him to just “answer the question.”

“So when it comes to the tip line, we wanted to make sure the White House had all the information we had, so when the hundreds of calls started coming it, we gathered those up, reviewed them and provided them to the White House,” Wray explained before Whitehouse interrupted.

“Without investigation?” he asked, to clarify.

“We reviewed them and then provided them to the White House,” Wray said.

There is no indication the White House was equipped or prepared to investigate the hundreds of tips, something the American public was told the FBI would be doing.

“You reviewed them for the purposes of separating from tip line traffic but did not further investigate the ones that related to Kavanaugh, correct?” Whitehouse asked.

“Correct,” Wray confirmed.

Wray also confirmed, as Whitehouse said, that “the FBI took direction from the White House as to whom the FBI would question.”

“So it is true,” Wray admitted.

There was no confirmation from Wray that any of the tips were investigated.

Reporting on the exchange between Wray and Whitehouse, Esquire’s Charles Pierce wrote, “the second background investigation into Kavanaugh was a White House-directed bag job of no value whatsoever.”

Snopes on Thursday also confirmed that the “administration of former U.S. President Donald Trump directed the one-week, follow-up background investigation of Brett Kavanaugh in 2018, according to sworn testimony from U.S. Federal Bureau of Investigation Director Christopher Wray.”

The Trump White House, Wray suggested, was in charge of deciding which tips about its own Supreme Court justice nominee, Brett Kavanaugh, the Bureau would be allowed to investigate.

Senator Whitehouse on Twitter later Thursday announced: “Wray confirms: Kavanaugh tips from tip line were sent to Trump White House without investigation; and Trump White House directed what witnesses FBI would interview.”

“The White House has found no corroboration of the allegations of sexual misconduct against Supreme Court nominee Brett Kavanaugh after examining interview reports from the FBI’s latest probe into the judge’s background,” The Wall Street Journal reported on October 4, 2018.

That report then went to the Senate Judiciary Committee members, who in an 11-10 vote, elected to support the nomination and send it to the full Senate for a vote.

Kavanaugh was confirmed on October 6, 2018, by a 50-48 vote.

There its no indication, based on Director Wray’s remarks Thursday, that the hundreds of tips it received were fully investigated, and there was no discussion of how many, if any, interviews based on those tips were conducted for the supplemental background investigation report on which Kavanaugh’s confirmation was, in part, based.

Watch below or at this link:

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omg

https://www.nbcnews.com/think/opinion/i-knew-brett-kavanaugh-during-his-years-republican-operative-don-ncna907391

no lnx

I knew Brett Kavanaugh during his years as a Republican operative. Don't let him sit on the Supreme Court.

We were part of a close circle of cynical hard-right operatives being groomed for much bigger things.

Sept. 7, 2018,

ByDavid Brock

I used to know Brett Kavanaugh pretty well. And, when I think of Brett now, in the midst of his hearings for a lifetime appointment to the U.S. Supreme Court, all I can think of is the old "Aesop's Fables" adage: "A man is known by the company he keeps."

And that's why I want to tell any senator who cares about our democracy: Vote no.

Twenty years ago, when I was a conservative movement stalwart, I got to know Brett Kavanaugh both professionally and personally.

Brett Kavanaugh proves the Supreme Court swing vote is dead

SEPT. 4, 2018]

Brett actually makes a cameo appearance in my memoir of my time in the GOP, "Blinded By The Right." I describe him at a party full of zealous young conservatives gathered to watch President Bill Clinton's 1998 State of the Union address — just weeks after the story of his affair with a White House intern had broken. When the TV camera panned to Hillary Clinton, I saw Brett — at the time a key lieutenant of Ken Starr, the independent counsel investigating various Clinton scandals — mouth the word "bitch."

But there's a lot more to know about Kavanaugh than just his Pavlovian response to Hillary's image. Brett and I were part of a close circle of cold, cynical and ambitious hard-right operatives being groomed by GOP elders for much bigger roles in politics, government and media. And it’s those controversial associations that should give members of the Senate and the American public serious pause.

[Related OPINION

GOP's maneuvering during the Kavanaugh confirmation hearings will seriously damage the Supreme Court's legitimacy]

Call it Kavanaugh's cabal: There was his colleague on the Starr investigation, Alex Azar, now the Secretary of Health and Human Services. Mark Paoletta is now chief counsel to Vice President Mike Pence; House anti-Clinton gumshoeBarbara Comstockis now a Republican member of Congress. Future Fox News personalities Laura Ingraham and Tucker Carlson were there with Ann Coulter, now a best-selling author, and internet provocateur Matt Drudge.

At one time or another, each of them partied at my Georgetown townhouse amid much booze and a thick air of cigar smoke.

In a rough division of labor, Kavanaugh played the role of lawyer — one of the sharp young minds recruited by the Federalist Society to infiltrate the federal judiciary with true believers. Through that network, Kavanaugh was mentored by D.C. Appeals Court Judge Laurence Silberman, known among his colleagues for planting leaks in the press for partisan advantage.

[Related OPINION

Tom Steyer and Ron Fein: Stop Kavanaugh's confirmation until Mueller's investigation is done]

When, as I came to know, Kavanaugh took on the role of designated leaker to the press of sensitive information from Starr's operation, we all laughed that Larry had taught him well. (Of course, that sort of political opportunism by a prosecutor is at best unethical, if not illegal.)

:{:{}:

Another compatriot was George Conway (now Kellyanne's husband), who led a secretive group of right-wing lawyers — we called them "the elves" — who worked behind the scenes directing the litigation team of Paula Jones, who had sued Clinton for sexual harassment. I knew then that information was flowing quietly from the Jones team via Conway to Starr's office — and also that Conway's go-to man was none other than Brett Kavanaugh.

[Recommended OPINION

What could be Florida Gov. DeSantis’ undoing on the national stage? HBCUs.

OPINION

Trump's election plot was eye-opening. And the Senate is finally paying attention.]

That critical flow of inside information allowed Starr, in effect, to set a perjury trap for Clinton, laying the foundation for a crazed national political crisis and an unjust impeachment over a consensual affair.

But the cabal's godfather was Ted Olson, the then-future solicitor general for George W. Bush and now a sainted figure of the GOP establishment(and of some liberals for his role in legalizing same-sex marriage). Olson had a largely hidden role as a consigliere to the "Arkansas Project" — a multi-million dollar dirt-digging operation on the Clintons, funded by the eccentric right-wing billionaire Richard Mellon Scaife and run through The American Spectator magazine, where I worked at the time.

Both Ted and Brett had what one could only be called an unhealthy obsession with the Clintons — especially Hillary. While Ted was pushing through the Arkansas Project conspiracy theories claiming that Clinton White House lawyer and Hillary friend Vincent Foster was murdered (he committed suicide), Brett was costing taxpayers millions by pedaling the same garbage at Starr's office.

A detailed analysis of Kavanaugh's own notes from the Starr Investigation reveals he was cherry-picking random bits of information from the Starr investigation — as well as the multiple previous investigations — attempting vainly to legitimize wild right-wing conspiracies. For years he chased down each one of them without regard to the emotional cost to Foster’s family and friends, or even common decency.

[Related OPINION

Brett Kavanaugh's Supreme Court nomination is the result of years of unopposed conservative organizing]

Kavanaugh was not a dispassionate finder of fact but rather an engineer of a political smear campaign. And after decades of that, he expects people to believe he's changed his stripes.

Like millions of Americans this week, I tuned into Kavanaugh's hearings before the Senate Judiciary Committee with great interest. In his opening statement and subsequent testimony, Kavanaugh presented himself as a "neutral and impartial arbiter" of the law. Judges, he said, were not players but akin to umpires — objectively calling balls and strikes. Again and again, he stressed his "independence" from partisan political influences.

But I don't need to see any documents to tell you who Kavanaugh is — because I've known him for years. And I'll leave it to all the lawyers to parse Kavanaugh's views on everything from privacy rights to gun rights. But I can promise you that any pretense of simply being a fair arbiter of the constitutionality of any policy regardless of politics is simply a pretense. He made up his mind nearly a generation ago — and, if he's confirmed, he'll have nearly two generations to impose it upon the rest of us.

---

fac so index:

May 26, 2019by Facing South

Rank of Brett Kavanaugh's 2018 appointment to the U.S. Supreme Court among the reasons there's a new push to ban abortion in state legislatures across the South and elsewhere: 1

In the fiscal year before it spearheadedKavanaugh's confirmation, amount the Judicial Crisis Network (JCN)— a secret-money 501(c)(4) "social welfare" nonprofit that promotes conservative judges — received in anonymous donations, according to a tax return recently obtained by campaign finance watchdogs: $22 million

Size of a single anonymous donation JCN got during the period between July 2017 and June 2018, when abortion rights-protecting Justice Anthony Kennedy resigned, opening the door to Kavanaugh, who was backed by anti-abortion groups: $17 million

Number of other anonymous donations JCN got that year, all of them at least six-figure: 9

JCN's spending in 2017 to support the confirmation of President Trump's other Supreme Court nominee, Neil Gorsuch, who has also shown hostility to the Court's 1973 Roe v. Wade decision legalizing abortion: $10 million

Year in which Carrie Severino — a former law clerk for Supreme Court Justice Clarence Thomas and spouse of Catholic anti-abortion lawyer Roger Severino, who now runs the Department of Health and Human Services' Office of Civil Rights and opposes contraceptive access under the Affordable Care Act — took the helm of JCN: 2014

Among JCN's top funders, rank of the Wellspring Committee, a secretive nonprofit that serves as a conduit for anonymous contributions to conservative causes and is led by hard-line Opus Dei Catholic Ann Corkery and her husband, Neil Corkery, who has served as JCN's treasurer: 1

Amount Wellspring funneled to JCN between 2010 and 2018: more than $54.2 million

According to the newly released tax return, amount JCN paid that fiscal year to the BH Group, a Virginia limited liability company connected to Trump advisor Leonard Leo, who's also the executive vice president of the Federalist Society, an influential conservative legal organization whose current or former members include five sitting Supreme Court justices: $241,000

Decades for which Leo — also reportedly an Opus Dei member who plays a key role in hiring at George Mason University's law school in Virginia — has worked to push the judiciary to the right in order to enable an abortion crackdown: 3

According to conservative commentator Ed Whelan, number of people "more dedicated to the enterprise of building a Supreme Court that will overturn Roe v. Wade" than Leo: 0

Month in which Leo told a gathering of conservative activists in Florida that they had to mobilize in "very unprecedented ways" to finish their transformation of the U.S. Supreme Court: 2/2019

Between 2014 and 2017 alone, amount Leo and his allies raised for JCN and other secret-money nonprofits to carry out their court-transforming agenda: more than $250 million

Year since JCN has also been funneling millions of dollars to state supreme court races, money that has bought misleading or even libelous ads: 2012

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[[ death on the nile, they ALL dunnit

on hanty

https://www.alternet.org/2022/06/ted-cruz/

accuse schumer of scotus assassin

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an 6 22

newsmax host Chris Salcedo recently laid out a bizarre theory suggesting that H:{ouse Speaker Nancy Pelosi (D-Calif.) was part of a plot to have U.S. Supreme Court Justice Brett Kavanaugh killed so President Joe Biden could nominate a replacement.}:

On Tuesday, June 14, Salcedo spoke with Rep. Rodney Davis (R-Ill.) where he noted that the top-ranking Democratic lawmaker had been responsible for holding up the passing of legislation to enhance security measures for justices and members of their families.

“A lot of folks are starting to ask some questions out there, congressman,” Salcedo began. “They’re openly wondering why Nancy Pelosi sat on a bill that was passed by the Senate to protect Supreme Court justices. Now she’s moving after an assassination attempt on Justice Kavanaugh. Are Americans right to question if Pelosi was actually hoping for, or encouraging violence that could lead to Joe Biden appointing a new Supreme Court justice?”

Salcedo's remarks come just days after an armed man was apprehended not far from Kavanaugh's Maryland home. At the time, the man reportedly admitted that he wanted to kill the justice.

[twt]

on Tuesday, House lawmakers also voted in favor of the bill. However, Davis appeared to pivot from the question.

“It’s certainly questions [sic] that Nancy Pelosi and others need to answer as to why she thought somehow Justice Kavanaugh – after having an assassin in his backyard – is somehow safe over the weekend. We could’ve gotten to this bill last week, but she chose to hold it up and she needs to answer as to why.”

Despite Salcedo's baseless theory, the bill for enhanced security passed with a staggering vote of 396-27. Biden is expected to sign the bill into law sometime next week. The opposing votes all came from Democratic lawmakers.

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rubber glue rt constant attributes bad behavior as defense/ reaction to dem bad acts

https://www.alternet.org/2022/06/fox-news-joe-biden-kavanaugh/

ncrm

fox News propagandistJesse Watters on Wednesday alleged President Joe Biden and other top Democrats may be behind the man who was arrested earlier that day who reportedly admitted he wanted to kill Supreme Court Justice Brett Kavanaugh.

“This could be a little criminal conspiracy,” Watters alleges, asking, “did the orders come all the way from the top?” JUST ASKING

For more than seven minutes Watters cobbled together various benign incidents from over the past two years in a clearly fictious narrative that draws the President, the Speaker of the House, the Senate Majority Leader, the White House Press Secretary, and a top Democratic Senator into what he baselessly suggests could be a conspiracy to kill a U.S. Supreme Court Justice.

Watters – who was highly criticized for using “violent rhetoric” by calling for a “kill shot” in interviews with Dr. Anthony Fauci – told Fox News viewers the man who he suggests is some high-powered hit man hired by the President, “got cold feet when he saw U.S. Marshals with arms guarding Kavanaugh’s house and called the cops on himself, telling them everything.”

“He says he was furious overRoe v. Wade possibly being overturned — remember the leak? — and was looking for purpose in his life,” Watters continues, as Media Matters reported. “So he found that purpose by going out and trying to kill a Supreme Court justice. Do you think that idea just popped into his head? Or did the orders come all the way from the top?”

Watters then tries to make his case, which amounts to “by Democrats’ own standards” there must be an investigation into this event because the left has accused Donald Trump of inciting the insurrection, Watters claims, merely by giving a speech at the January 6 rally.

By the end of his seven-minute-plus rant, Watters concludes:

“This is just the beginning, this summer is going to be ugly. That’s why we have to get to the bottom of this. This could be a little criminal conspiracy that needs to be investigated – again by the left’s own standards. We might have toappoint a commission. We might have to hold hearings,” he says, as if he is a member of Congress or DOJ official.

“We have a criminal leak,” Watters falsely claims, referring to the leak of the Supreme Court draft, which legal experts make clear was not criminal.

“We have a group that’s protesting outside [Kavanaugh’s] house. You have an attorney general that’s not doing anything about this,” he claimed, after earlier complaining that the protestors outside Supreme Court Justices’ homes should be arrested.

“You have a senator who’s agitating,” Watters claims, earlier referring to a March 2020 statement Senator Chuck Schumer made.

“You have a White House, who’s giving this license. Maybe time to put some people in leg shackles like they did to Navarro. These people incited violence possibly, we need to hold them accountable if they did. Chuck Schumer, Nancy Pelosi, Liz Warren, anybody who has their hands on this should face consequences again, by the left’s own standards. Don’t call me crazy. They set the rules. We’re just following.”

Watch:

===]]

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622 an

no lnx twt

For decades, Sen. Susan Collins’ admirers in New England praised her as a shining example of a moderate GOP conservative who was staunchly pro-choice. Collins insisted that opposition to Roe v. Wade was a deal breaker for her, but in 2018, the Maine Republican helped pave the way for Roe’s demise when she voted to confirm Justice Brett Kavanaugh to the U.S. Supreme Court.

Kavanaugh, Collins assured abortion rights supporters in 2018, considered Roe “settled law” and embraced the doctrine of stare decisis — a legal concept that means respect for precedent. But according to a leaked 5-4 majority draft opinion written by Justice Samuel Alito, Kavanaugh is among the justices who favors overturning Roe. Collins was deceived by Kavanaugh — deception that, journalists Asawin Suebsaeng and Adam Rawnsley report in an article published by Rolling Stone on June 2, was encouraged by members of the Trump Administration.

“Turns out, Collins wasn’t just wrong about Kavanaugh,” Suebsaeng and Rawnsley explain. “She was deliberately manipulated by Trump Administration officials — and a future Supreme Court justice — who viewed her as an easy mark.Two former senior Trump White House officials tell Rolling Stone that the pro-choice Collins wasn’t even considered a serious threat to the devoutly conservative Kavanaugh.”

Suebsaeng and Rawnsley continue, “Instead, the team predicted she’d need only a vague assurance that the nominee would uphold the half-century-old ruling defending abortion rights. And they were right.”

The High Court justices who have reportedly decided to overturn Roe range from Kavanaugh and Alito to Amy Coney Barrett, Neil Gorsuch and Clarence Thomas. The four dissenters are Sonia Sotomayor, Elena Kagan, Chief Justice John Roberts and Stephen Breyer (who is retiring and will be replaced by President Joe Biden’s nominee, Judge Ketanji Brown Jackson, later this year).

Collins voted to confirm Gorsuch in 2017, and she voted to confirm Alito in 2006. The Maine senator also voted to confirm Barack Obama nominees Sotomayor and Kagan.

After meeting with Alito in 2005, Collins told reporters, “He assured me that he has tremendous respect for precedent and that his approach is to not overturn cases due to a disagreement with how they were originally decided.”

A former Trump Administration official, interviewed on condition of anonymity, told Rolling Stone, “The thinking from Trump.… and everybody else who worked to make this happen was that, as long as his nominees didn’t say anything stupid (on abortion) and let the Susan Collins-es of the world think what they needed to think and hear what they needed to hear, then it would get done.”

According to Suebsaeng and Rawnsley, some Trump Administration officials who “worked on the Kavanaugh confirmation privately mocked Collins and her public posturing over Roe,” using “crass language” that included describing the Maine senator as a “cheap date.”

“Back in 2018,” Suebsaeng and Rawnsley report, “ the Trump team and Senate GOP offices would regularly send guidance to outside organizations and top activists who were fervently supporting Kavanaugh…. When it came to Collins, the guidance from Team Trump was, consistently, that she not be approached, according to two sources who were close to the White House. One of the reasons, a former top Trump aide says, is because the White House and Kavanaugh allies believed that a pressure campaign from the right would backfire, and that Collins would get to a ‘yes’ on her own — assuming she got just the right verbal responses she wanted.”

Suebsaeng and Rawnsley add, “The Trump team’s apparent manipulation of Collins was part of a broader effort to smuggle, in broad daylight, anti-Roe justices onto the Supreme Court — an effort that was only somewhat complicated by Trump’s past statements on ending Roe and his nominees’ long anti-abortion records.”

In 2018, according to Rolling Stones’ sources, “Trump aides and Kavanaugh allies” held mock Senate confirmation hearings — and Kavanaugh practiced giving evasive answers to questions about Roe.

“Whenever the topic of abortion came up in his prep sessions,” Suebsaeng and Rawnsley report, “Kavanaugh knew what do say: effectively, nothing. Typically, he would give lengthy, detailed monologues on dissents, opinions, and precedents, and then, as was his standard, refuse to divulge how he thought he’d rule if the opportunity to overturn Roe ever came up.”

An anonymous source told Rolling Stone, “That’s how (Kavanaugh) operated. It was his way of telling you, ‘I know a lot about this — but I’m not going to tell you how I’d rule’.… His idea was that saying it was long-standing precedent didn’t mean it couldn’t get overturned at some point.… (Kavanaugh) gets the need to demonstrate knowledge about the law, but not to tip your hand about your opinions about a specific case or issue.”

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622 an

no lnx twt

Collins voted to confirm Gorsuch in 2017, and she voted to confirm Alito in 2006. The Maine senator also voted to confirm Barack Obama nominees Sotomayor and Kagan.

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https://www.opednews.com/articles/SCOTUS-Conservatives-Decla-by-Jeanine-Molloff-Corporate-Rule_Deregulation-Regulation_Supreme-Court-SCOTUS-220210-234.html

OpEdNews Op Eds 2/10/2022

SCOTUS Conservatives Declare War Against Decades of Regulatory Laws

By Jeanine Molloff (Page 1 of 4 pages)

Message Jeanine Molloff

Reprinted from buzzflash.com

Conservatives on the Supreme Court are working feverishly to potentially dismantle most government regulation that corporations want gone, by dredging up two legal fictions, the 'major questions' doctrine and the 'nondelegation' doctrine.If successful, the court could nullify decades of progressive laws on everything from food safety to environmental concerns. The court is dismantling democracy itself.

December 10, 2021, multiple tornados struck the American Midwest, including Missouri, Illinois, Arkansas, and Kentucky, destroying everything in their path. Amazon employees at the Edwardsville, Illinois 'fulfillment center' were trapped in a flimsy tinfoil structure as a killer tornado stampeded through the sleepy rural setting. Personal accounts from workers and their families claim that Amazon kept these workers as virtual hostages. Those who wanted to leave were threatened with disciplinary action. Though multiple tornado warnings were issued all day, workers weren't allowed to access emergency weather reports because of the company's 'no phone' policy, which forbids phones on the warehouse floor. Six Amazon employees died in that warehouse when the roof collapsed. These deaths were avoidable. In fact, you could argue that these deaths were facilitated by Amazon's systemic abuse of their employees.

That same night another lethal tornado hit the Mayfield Consumer Products Factory in Mayfield, Kentucky. Severe weather warning systems alerted the community some three hours before the tornado hit. Employees at the Mayfield factory were also being threatened by supervisors with disciplinary action, including termination if they left the facility. The employees remained on site, and eight died in the rubble. Kentucky tornado: Factory workers threatened with firing if they left before tornado, employees say (nbcnews.com)Survivors of deadly tornado that leveled factory sue employer, saying they weren't allowed to leave | PBS NewsHour

In both instances, workers placed in danger by their employers have a legal pathway to receive compensation for their injuries and demand their employer be held accountable. This is due, in part to various government agencies such as OSHA, whose job is to defend workplace safety. Without such agency regulation, workers have little to no recourse against abusive employers. These agencies determine and craft regulations meant to implement laws which are generally written in very vague and broad terms. In order to make the regulations fair and subject to various industry standards, these agencies are staffed by professionals in those specific areas of expertise. It should be unnecessary to explain this rationale; that a lawyer shouldn't be crafting regulations on something like pharmaceuticals, nuclear energy or vaccine safety but Supreme Court conservatives apparently never received the memo.

The conservatives on the court would use two legal fictions to deregulate the government, and yes, subsequently create a chaotic system which could, for instance, assign a lawyer to write regulations for nuclear waste storage or decide whether vaccines are medically safe.

The two legal fictions I am referring to are the 'major questions doctrine' and the 'nondelegation doctrine.' Both fictions were crafted specifically to undermine any regulations which did not receive a legislative permission slip from Congress for any rules or regulations not mentioned in the original legislation.

Conservative jurists know these two fictions are based on little more than rhetorical quicksand, but they don't care.

The intent of these two legal fictions is to bring all government agencies other than the military to a grinding halt. The conservatives on the Supreme Court are determined to create a judicial 'get out of jail free' card for the growing state of 'corporate capture' in the USA. Just this past month the Supreme Court reviewed and decided two cases, specifically engineered to test the "major questions doctrine." Both cases revolve around vaccine mandates. The court is also scheduled to hear a case which would test "nondelegation" in the coming weeks, and that case is West Virginia v. EPA. If these legal fictions are allowed to stand, the Supreme Court could dismantle much of the federal government, especially in the areas of consumer safety, worker rights, and environmental concerns.

The history of the "major questions" doctrine...

The genesis of this fiction began with a few cases which questioned whether federal agencies exceeded their authority granted by Congress as they interpreted various applications of the law. The goal of this fiction is clear. The "major questions" doctrine was implemented so conservatives could nullify any substantive agency authority and subsequent regulations.

This was the first step required to dismantle much of government. The far right-wing is patient if nothing else. Historically, there were three specific cases which served as the prerequisite to dismantling regulations which the business community was determined to kill.

Communications Act of 1934and "major questions" kryptonite...

The first case dealt with the Communications Act of 1934, which established tariffs on telecommunications companies through the administration of the FCC or Federal Communications Commission. In 1994, the Supreme Court ruled that the FCC couldn't unilaterally "modify" tariffs for the telecommunications industry, deciding that such modifications would constitute a rewriting or revision of the Communications Act of 1934. Such changes would have to come about through the legislative process. The fact that this action on the part of the FCC would have virtually abolished those tariffs is not the major point. The goal of these judicial activists was to discredit the delegation of powers to federal agencies, as an illegitimate and thus unconstitutional grant of power to the administrative state.

FDA v. Brown & Williamson Tobacco Corp. Case....[much more]

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https://www.scotusblog.com**/2018**/07/:{kavanaugh-and-the-environment/}:

Michael Livermore is professor of law at University of Virginia School of Law.

As in many other areas, Justice Anthony Kennedy was the swing vote in environmental cases, lining up in the middle of his more reliably conservative and liberal peers. His proposed replacement, Judge Brett Kavanaugh, has exhibited a very clear track record of relative solicitousness to regulated industry and skepticism to environmental interests. These instincts will likely place him to the right of Chief Justice John Roberts in environmental cases, shifting Roberts to the center of the court. As a consequence, we can expect that a Kavanaugh confirmation would usher in a court that is considerably less sympathetic to environmental protections. This new alignment may have particularly profound effects in the coming years in litigation involving greenhouse gas emissions and federal jurisdiction over water pollution.

When the Supreme Court decides environmental cases, its primary role is in defining the scope of agency authority under one of the major environmental statutes (such as the Clean Water Act) or passing on the legality of an agency action. Because of the specificity of many environmental cases — interpreting the language in one provision of a long and complex statute or examining the administrative record that supports a particular agency decision — the doctrines that arise in environmental cases are typically fairly contained. Where they have more general applicability, it is often because they are intertwined with other questions, such as administrative law issues.

Such was the case with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council Inc., which arose in a challenge by an environmental organization to a Reagan-era rule by the Environmental Protection Agency. The environmental law question in that case was the definition of a “source” under Clean Air Act rules concerning air pollution control requirements. Although the outcome had important environmental law consequences, that statutory issue did not represent the kind of repeat question that generally arises many times before the courts. The case is famous, rather, for its rule concerning the deference owned to agencies for their statutory interpretations, a doctrine that applies far outside the context of a single environmental statute.

Because of the sui generis nature of many environmental law cases, and their entanglement with administrative law issues, one might expect that it would be difficult to identify general trends for individual judges. A strong commitment to Chevrondeference, for example, might cut in favor of a stringent regulation in one case and an industry-friendly deregulation in another. Nevertheless, in some high-profile environmental cases, the court does split along standard ideological lines, with the liberal justices coming down in favor of pro-environment outcomes and the conservative justices favoring industry. It is in these more ideologically charged cases that Kavanaugh’s skepticism toward environmental protections is likely to have the most impact.

Two little-known dissents in which Kavanaugh parted ways from even his conservative colleagues on the U.S. Court of Appeals for the District of Columbia Circuit help illustrate his general tendencies in environmental cases. In Sierra Club v. EPA, in 2008, Kavanaugh sat on a panel with two fellow Republican appointees: then-Chief Judge David Sentelle, who was appointed by President Ronald Reagan, and Judge Thomas Griffith, who, like Kavanaugh, is a President George W. Bush appointee. That case involved a challenge by the Sierra Club to a Bush-era EPA regulation that relaxed monitoring requirements associated with a permitting program under the Clean Air Act. Writing for the majority, Griffith found that the EPA had overstepped its statutory authority and struck down the rule. In his dissent, Kavanaugh noted that he “agree[d] completely with the majority opinion about bedrock principles of statutory interpretation,” yet arrived at the opposite result — for him, the most natural interpretation of the act was one that favored the agency’s less stringent approach.

Another case in which Kavanaugh disagreed with like-minded colleagues in an environmental case was 2010’s Howmet Corp. v. EPA, which involved an industry challenge to an EPA interpretation of one of its regulations under the Resource Conservation and Recovery Act. The agency had determined in an enforcement action that a particular chemical was “spent material” and therefore subject to regulation after it had been used in an industrial cleaning process. Writing for herself and Sentelle, Judge Janice Brown (also a George W. Bush appointee) found that the regulation in question was ambiguous and deferred to the agency’s interpretation. Kavanaugh disagreed, arguing that “EPA’s argument mangles the language of [its] 1985 regulations.” He would have voided the agency enforcement action that relied on that interpretation.

Both of these cases involve fairly typical questions of statutory and regulatory interpretation, but what is striking is Kavanaugh’s inclination — even more so than his fellow conservatives — to read the language at issue in ways that were adverse to more stringent environmental protection. By contrast, it appears as though in his time on the D.C. Circuit, Kavanaugh has never issued a dissent in a case in which the majority ruled against an environmental interest.

To reach these outcomes, Judge Kavanaugh is quite flexible in how he applies general principles of administrative law. This tendency is especially clear in two opinions concerning challenges to Obama-era Clean Air Act regulations. In White Stallion Energy Center v. EPA, in 2014, the majority upheld a regulation that imposed more stringent controls on mercury pollution from coal-fired power plants. In dissent, Kavanaugh argued that the agency was obligated to consider compliance costs when determining whether it was “appropriate and necessary” to regulate these sources — its failure to do so was, in his eyes, fatal to the regulation. After granting certiorari in the case, the Supreme Court in 2015 vindicated Kavanaugh’s view in Michigan v. EPA. Justice Antonin Scalia, writing for a 5–4 majority, held that the statutory language “appropriate and necessary” required that the agency consider costs at the earliest stage of its rulemaking.

Kavanaugh’s flexibility becomes apparent in something of a companion case from 2012, EME Homer City Generation v. EPA, in which a group of states and industry representatives challenged a rule to reduce air pollution that crosses state borders. That case also involved the consideration of costs when setting a regulation, but with a twist: In this case, it was the EPA and environmentalists that argued that the agency had the discretion to consider compliance costs when setting emissions budgets for states, and industry arguing that the agency could not consider costs. Kavanaugh again sided with industry, holding that the “EPA may rely on cost-effectiveness factors in order to allow some upwind States to do less than their full fair share” to control pollution, but not more. In other words, for Kavanaugh, cost considerations were a one-way ratchet: When costs are high, then they can be used to justify less stringent environmental protection, but cheap and easy controls are not a good reason to go further to clean up the air. EME Homer, like White Stallion, was taken up by the Supreme Court, but this time Kavanaugh’s view did not prevail, with Justice Ginsburg writing for a 6–2 majority (which included Kennedy and Roberts) that the statute gave the agency broad latitude to craft a regulatory program to cut interstate emissions, with compliance costs as a perfectly reasonable factor for the agency to consider. Scalia, however, agreed with Kavanaugh, arguing in dissent that the agency inappropriately relied on costs.

The contrast between White Stallion and EME Homer is clear: In the case in which considering costs would lead to less stringent standards, Kavanaugh believes that costs must be considered; but in the case in which considering costs would lead to more stringent standards, he says that they cannot be considered.

If we assume that Kavanaugh’s appointment would shift the swing vote on environmental cases to Roberts, it is worth considering how much this would affect the shape of environmental law in the coming years. Despite the Supreme Court’s politically charged nature, many environmental cases do not result in 5–4 decisions, and so changing a single justice would not upset the outcome. And in recent years, when the justices have fallen along strict ideological lines, Kennedy has typically joined the conservative wing. Since taking his position as the court’s median justice, Kennedy has only swung an outcome toward the liberals in two major environmental cases. The first was Rapanos v. United States, in which a separate opinion by Kennedy avoided a majority opinion by Scalia that would have severely limited the scope of federal jurisdiction under the Clean Water Act. The second was Massachusetts v. EPA, in which Kennedy joined the liberal wing in holding that the agency had the authority to regulate greenhouse gases under the Clean Air Act. Both of these are extremely consequential cases and involve issues that are likely to reappear in the near future.

Current controversies over jurisdiction under the Clean Water Act swirl around the Clean Water Rule, which was promulgated under President Barack Obama. Several cases involving that rule, and an effort by the current administration to repeal it, are now winding their way through the courts and are likely to find an audience before the Supreme Court soon. With a new court composition, Scalia’s plurality opinion in Rapanos may be up for a revival, potentially leading to a severe contraction of federal jurisdiction over pollution into smaller water bodies. Litigation over climate change and greenhouse gas regulation currently takes many forms, from constitutional claims and state actions under nuisance law to pending challenges to the not-yet-rescinded Obama-era Clean Power Plan. When these cases ultimately arrive at the court, environmentalists have good reason to be fearful not only that they may lose on the issue of the day, but also that the bedrock holding of Massachusetts v. EPA may gradually be eroded over time. (It is worth noting that a direct reversal of Massachusetts v. EPA is unlikely, given the court’s reliance on that decision in subsequent cases such as American Electric Power Co. Inc. v. Connecticut, which held that there was no federal common law action for climate damages.)

More generally, given congressional gridlock, notice-and-comment rulemaking by environmental agencies has become the primary vehicle for environmental progress over the past several decades. A shift from Kennedy to Roberts as the deciding vote in environmental cases will make this path more difficult, halting and fraught with risk. For regulated industries, this shift will be welcome, improving their chances in litigation and strengthening their bargaining hand with agencies. Environmentalists, on the other hand, have good reason to be concerned about the new obstructions that are likely to spring up on one of the few remaining paths they have for achieving their policy goals.

Posted in Judge Kavanaugh's jurisprudence, Nomination of Brett Kavanaugh to the Supreme Court

Recommended Citation: Michael Livermore, Judge Kavanaugh and the environment, SCOTUSblog (Jul. 18, 2018, 1:27 PM), https://www.scotusblog.com/2018/07/kavanaugh-and-the-environment/

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ok gerry again?!

https://www.alternet.org/2022/02/scotus-voting-rights/

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https://www.alternet.org/2022/02/brett-kavanaugh

U.S. Supreme Court Justice Brett Kavanaugh, on Monday, expressed his disapprovalover Justice Elena Kagan's sharp criticism of him and his conservative allies.

The conflict arose over the Court's decision Monday to halt a lower court's order requiring Alabama to redraw its congressional maps over claims it disenfranchised black voters. Per Talking Points Memo:

"The conservative majority did not explain its reasoning in Monday’s order. Justice Brett Kavanaugh did write a concurring opinion, attempting to rebut Justice Elena Kagan’s dissent."

In her dissent, Kagan did not mince words with her criticism of Kavanaugh, arguing that the state's attempts to defend the redistricting, which would group the majority of Black voters in one district, "seeks to 'graft onto' the Voting Rights Act 'a new requirement, lacking any foundation in our precedent.'”

Per TPM, the state claims "that if a new map to craft two Black majority districts is to be drawn, it must be drawn without taking race into account as a priority — otherwise, the state claims, it would be an illegal racial gerrymander."

However, Kavanaugh argues otherwise.

“The stay order does not make or signal any change to voting rights law,” he insists. “The stay order is not a ruling on the merits, but instead simply stays the District Court’s injunction pending a ruling on the merits.”

Kavanaugh then pivoted to express his disapproval of the Kagan's dissent. “The principal dissent’s catchy but worn-out rhetoric about the ‘shadow docket’ is similarly off-target,” he said.

“Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates,political parties, and voters, among others,” Kavanaugh wrote. “It is one thing for a State on its own to toy with its election laws close to a State’s elections. But it is quite another thing for a federal court to swoop in and re-do a State’s election laws in the period close to an election.”

He also claimed politics had no bearing on his decision.

“Contrary to the dissent’s mistaken rhetoric, I take no position at this time on the ultimate merits of the parties’ underlying legal dispute,” he wrote. “And I need not do so until the Court receives full briefing, holds oral argument, and engages in our usual extensive internal deliberations.”

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2 22

two stories straight out of Alabama this week really encapsulate how the panic over "critical race theory," the war on schools and the war on democracy itself are all a piece of a singular racist right wing movement. Last week, AL.com reported that school officials across the state say parents are freaking out over the very existence of Black History Month, accusing schools of promoting "critical race theory" by mentioning it or honoring it in any way.

And on Monday, the Supreme Court declined to enforce the 1965 Voting Rights Actin response to a plainly racist gerrymander in Alabama, on the grounds that doing so would interfere with the state's control of their elections systems. Yes, even though federal oversight of state election systems is literally what the Voting Rights Act was designed to do.

It's been 13 months since Donald Trump incited an insurrection on the Capitol, one that was clearly driven by white supremacy and the belief that the votes of Black Americans simply shouldn't count as much as those of white people. There continues to be a struggle between various factions of the GOP over how to portray the violent insurrection itself — to call it a glorious MAGA revolution or pretend it was a random event unconnected to the larger party — but these two stories show the sentiment that drove it has now taken root in every corner of the GOP. From the school board to the Supreme Court, Republicans are determined to stomp out anything that stands in the way of white supremacy, from history to the law to democracy itself.

The Supreme Court's Monday decision is rife with confusing legalese, and will likely be mostly overlooked by both the media and the public because of it. But it's important. As with the court's recent approach to the Texas abortion ban, it showcases how the three Trump appointees to the court have transformed SCOTUS into an authoritarian body that will throw out the rule of law to enforce a far-right agenda.

In a 5-4 decision, the conservative justices stayed a lower court's ruling that a new Alabama gerrymander disenfranchised Black voters, in a clear violation of section 2 of the Voting Rights Act. In his defense of the decision, Trump appointee Brett Kavanaugh didn't even bother to argue that the gerrymander was legal, but instead insisted that enforcing federal election law nine months out from an election would "lead to disruption" and that it was "unanticipated and unfair" to expect Alabama to obey a law passed 57 years ago.

"It is hard to overstate how lawless the Supreme Court's order is," wrote Mark Joseph Stern, who covers courts and law for Slate, on Twitter. "The five ultraconservative justices broke the court's own rules to intervene with an unreasoned shadow docket decision that effectively nullifies a key provision of the Voting Rights Act. It's profoundly alarming."[twt]

the refusal of the court to enforce the plain letter text of the law is so egregious that even Chief Justice John Roberts — a man who has made it his life's work to gut the Voting Rights Act — voted with the liberal justices. Roberts may share the racist goals of the other conservative judges, but even he clearly feels uneasy with the court simply rejecting the duty to enforce the law simply because they disagree with its aims.

By issuing this decision, the conservative judges are throwing their lot in with Trump and the Capitol insurrectionists — if the law will not uphold white supremacy, the law itself is invalid.

It's the same impulse underpinning the panic over "critical race theory," a cover story for white conservatives trying to stomp out acknowledgment of the country's racist history and contributions made by Black Americans. Republicans spent months gaslighting the public about this, insisting the attacks on school boards and bans on "critical race theory" were about stopping supposedly "divisive" teachings and "anti-white" racism. But their actions speak otherwise, from these complaints about Black History Month to efforts to ban books about Martin Luther King Jr. The goal is erasing history, literature and even facts that conflict with a white supremacist ideology.

What was remarkable about the Capitol insurrection is that it was both an assault on rule of law and on reality itself. The rioters rejected the basic fact that Joe Biden won the 2020 election. They also rejected the basic law that asserts that the winner of the election has the right to take power. The belief that they and people like them — white conservatives — have a "right" to rule overrules everything else.

The insurrection clearly didn't end on January 6, just because the rioters failed to overturn the election and enshrine the Big Lie. On the contrary, the insurrection has mutated and metastasized within the GOP. It has infused the whole party, from the ordinary voters freaking out at school boards to the highest court in the land. There might be a few Republican holdouts — like Roberts or former vice president Mike Pence — who still think things like "rule of law" and "basic facts" matter. But they have clearly lost the battle with the rest of the party, as this 5-4 Supreme Court decision shows. There is no law or fact Republicans feel bound to respect. Anything that stands in the way of the white conservative will to power is expected to give way.

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closed talk at fedsoc vs pence ~ overturn elections?

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some pressure on fbi wray to reopen case b/c? 921

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https://www.alternet.org/2021/10/capital/

Judge Loretta Preska, an advisor to the conservative Federalist Society, to which Chevron is a major donor, sentenced human rights attorney and Chevron nemesis Steven Donziger to six months in prison Friday for misdemeanor contempt of court after he had already spent 787 days under house arrest in New York.

This article originally appeared on ScheerPost.]

Preska's caustic outbursts — she said at the sentencing, "It seems that only the proverbial two-by-four between the eyes will instill in him any respect for the law"— capped a judicial farce worthy of the antics of Vasiliy Vasilievich, the presiding judge at the major show trials of the Great Purges in the Soviet Union, and the Nazi judge Roland Freisler who once shouted at a defendant,"You really are a lousy piece of trash!"

Donziger, a graduate of Harvard Law School, has been fighting against polluting American oil companies for nearly three decades on behalf of indigenous communities and peasant farmers in Ecuador. His only "crime" was winning a $9.5 billion judgment in 2011 against Chevron for thousands of plaintiffs. The oil giant had bought Texaco oil company holdings in Ecuador, inheriting a lawsuit alleging it deliberately discharged 16 billion gallons of toxic waste from its oil sites into rivers, groundwater, and farmland. Since the verdict, Chevron has come after him, weaponizing litigation to destroy him economically, professionally, and personally.

The sentencing came a day after Donziger petitioned the court to consider an opinion by the United Nations human rights council that found his house arrest a violation of international human rights law. The U.N human rights council said his house arrest counted as detention under international law and it was therefore illegal for Judge Preska to demand an additional six months in jail. Amnesty International also called for Donziger's immediate release.

Donziger and his lawyers have two weeks to appeal the judge's order that Donziger be sent immediately to jail. Preska denied Donziger bail claiming he is a flight risk. If the Federal Court of Appeals turns down Donziger's appeal he will go to jail for six months. The irony, not lost on Donziger and his lawyers, is that the higher court may overturn Preska's ruling against him, but by the time that decision is made he will potentially have already spent six months in jail.

"What Judge Preska is trying to do is force me to serve the entirety of my sentence before the appellate court can rule," Donziger told me by phone on Monday. "If the appellate court rules in my favor, I will still have served my sentence, although I am innocent in the eyes of the law."

Donziger, his lawyers have pointed out, is the first person under U.S. law charged with a "B" misdemeanor to be placed on home confinement, prior to trial, with an ankle monitor. He is the first person charged with any misdemeanor to be held under home confinement for over two years. He is the first attorney ever to be charged with criminal contempt over a discovery dispute in a civil case where the attorney went into voluntary contempt to pursue an appeal. He is the first person to be prosecuted under Rule 42 (criminal contempt) by a private prosecutor with financial ties to the entity and industry that was a litigantin the underlying civil dispute that gave rise to the orders. He is the first person tried by a private prosecutor who had ex parte communications with the charging judge while that judge remained (and remains) unrecused on the criminal case.

"No lawyer in New York for my level of offense ever has served more than 90 days and that was in home confinement," Donziger told the court. "I have now been in home confinement eight times that period of time. I have been disbarred without a hearing where I have been unable to present factual evidence; thus, I am unable to earn an income in my profession. I have no passport. I can't travel; can't do human rights work the normal way which I believe I am reasonably good at; can't see my clients in Ecuador; can't visit the affected communities to hear the latest news of cancer deaths or struggles to maintain life in face of constant exposure to oil pollution.

In addition, and this is little known,Judge [Lewis A.] Kaplan has imposed millions and millions of dollars of fines and courts costs on me. [Kaplan is the judge for Chevron's lawsuit against Donziger; Preska is his handpicked judge for the contempt charges.] He has ordered me to pay millions to Chevron to cover their legal fees in attacking me, and then he let Chevron go into my bank accounts and take all my life's savings because I did not have the funds to cover these costs. Chevron still has a pending motion to order me to pay them an additional $32 [million] in legal fees. That's where things stand today. I ask you humbly: might that be enough punishment already for a Class B misdemeanor?"

Judge Preska was unmoved.

"Mr. Donziger has spent the last seven years thumbing his nose at the U.S. judicial system," Preska said at his sentencing hearing. "Now it's time to pay the piper."

The six-month sentence was the maximum the judge was allowed to impose;she ruled that his house arrest cannot be counted as part of his detention. From start to finish, this has been a burlesque. It is emblematic of a court system that has been turned over to lackies of corporate power, who use the veneer of jurisprudence, decorum, and civility to make a mockery of the rule of law.

When the law is neutered, judges become the enforcers of injustice. These corporate judges, who epitomize what Hannah Arendt called the banality of evil, now routinely make war on workers, civil liberties, unions, and environmental regulations.

Preska sent Jeremy Hammond to prison for a decade for hacking into the computers of a private security firmthat works on behalf of the government, including the Department of Homeland Security, and corporations such as Dow Chemical. In 2011, Hammond released to the website WikiLeaks and Rolling Stone and other publications some three million emails from the Texas-based company Strategic Forecasting Inc., or Stratfor. The sentence was one of the longest in U.S. history for hacking and the maximum Preska could impose under a plea agreement in the case. I sat through the. I watched Preska spew her bile and contempt at Hammond from the bench with the same vitriol she used to attack Donziger.

Preska is also infamous for her long judicial crusade to force New York public schools to provide tax-subsidized free space for evangelical churches based on blatantly illogical readings of the Constitution.

The persecution of Donziger fits a pattern familiar to millions of poor Americans who are coerced into accepting plea deals, many for crimes they did not commit, and sent to prison for decades. It fits the pattern of the judicial lynching and prolonged psychological torture of Julian Assange and Chelsea Manning. It fits the pattern of those denied habeas corpus and due process at Guantánamo Bay or in CIA black sites. It fits the pattern of those charged under terrorism laws, many held at the federal Metropolitan Correctional Center (MCC) in Lower Manhattan, who cannot see the evidence used to indict them. It fits the pattern of the widespread use of Special Administrative Measures, known as SAMs, imposed to prevent or severely restrict communication with other prisoners, attorneys, family, the media, and people outside the jail. It fits the pattern of the extreme sensory deprivation and prolonged isolation used on those in our black sites and prisons, a form of psychological torture,the refinement of torture as science. By the time a "terrorist" is dragged into our secretive courts the bewildered suspect no longer has the mental and psychological capability to defend themselves. If they can do this legally to the demonized they can, and one day will, do it to the rest of us. The Donziger case is an ominous warning that the American legal system is broken.

Ralph Nader, who graduated from Harvard Law School, has long decried the capture of the courts and law schools by corporate power, calling the nation's attorneys and judges "lucrative cogs in the corporate wheel." He notes that law school curriculums are "built around corporate law, and corporate power, and corporate perpetration, and corporate defense."

Victor Klemperer, who was dismissed from his post as a professor of Romance languages at the University of Dresden in 1935 because of his Jewish ancestry, astutely noted how at first theNazis "changed the values, the frequency of words, [and] made them into common property, words that had previously been used by individuals or tiny troupes. They confiscated words for the party, saturated words and phrases and sentence forms with their poison. They made language serve their terrible system. They conquered words and made them into their strongest advertising tools [Werebemittle], at once the most public and most secret." And, Klemperer noted, as the redefinition of old concepts took place the public was oblivious.

This redefinition of words and concepts has, as Klemperer witnessed during the rise of fascism, allowed the courts to twist the law into an instrument of injustice, revoking our rights by judicial fiat. It has seen the courts permit unlimited dark money into political campaigns under Citizens United, defending our money-saturated elections as the right to petition the government and a form of free speech. The courts have revoked our right to privacy and legalized wholesale government surveillance in the name of national security. The courts grant corporations the rights of individuals, while rarely holding the individuals who run the corporations accountable for corporate crimes.

Very few of the legal rulings that benefit corporate power have popular support. The corporate disemboweling of the country, therefore, is increasingly given cover by Christian fascists, who energize their base around abortion, prayer in schools, guns and breaking down the separation of church and state. These issues are rarely addressed in cases before federal courts. But they distract the base from the slew of pro-corporate rulings that dominate most court dockets.

Corporations such as Tyson Foods, Purdue, Walmart, and Sam's Warehouse have poured millions into institutions that indoctrinate [incubators] these Christian fascists, including Liberty University and Patrick Henry Law School. They fund the Judicial Crisis Network and the U.S. Chamber of Commerce, which campaigned for Amy Coney Barrett's appointment to the Supreme Court. Barrett opposes abortion and belongs to People of Praise, a far-right Catholic cult that practices "speaking in tongues." She and the other far-right ideologues are hostile to LGBTQ rights. But this is not why she is so beloved by corporations, who are not interested in abortion, LGBTQ equality or gun rights.

Barrett and the Christian fascists embrace an ideology that believes that God will take care of the righteous. Those who are poor, those who are sick, those who go to prison, those who are unemployed, those who cannot succeed in society do so because they have failed to please God. In this worldview there is no need for unions, universal health care, a social safety net or prison reform. Barrett has ruled consistently in favor of corporations to cheat gig workers out of overtime, green-light fossil fuel extraction and pollution and strip consumers of protection from corporate fraud. The watchdog group Accountable.US found that as a circuit court judge,Barrett "faced at least 55 cases in which citizens took on corporate entities in front of her court and 76% of the time she sided with the corporations."

The Christian fascists, allied with organizations such as the Federalist Society, under the Trump administration gave lifetime appointments to nearly 200 judges, roughly 23 percent of all federal judgeships. That included 53 to the nation's appellate courts, the court immediately under the Supreme Court. The American Bar Association, the country's largest nonpartisan coalition of lawyers, has rated many of these appointments as unqualified. There are currently six Federalist Society Supreme Court justices, including Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh, who Nader calls "a corporation masquerading as a human being." Two Federalist Society Supreme Court justices, Clarence Thomas and the late Antonin Scalia, who was an original faculty advisor to the organization founded by conservative law students in 1982, were supported in the nomination process by Joe Biden.

The stacking of the courts with corporate puppets, however, began long before Trump. It was carried out by both Republican and Democratic administrations. Preska was appointed by Republican President G.W. Bush. However, the judge who preceded Preska in the Donziger case, Judge Lewis A. Kaplan, a former lawyer for the tobacco industry who had undisclosed investments in funds with Chevron holdings, according to his public financial disclosure statement, was appointed by Democratic President Clinton.

The targeting of the courts was one of the key goals of Lewis Powell, a corporate lawyer later elevated to the Supreme Court by President Nixon. In Powell's 1971 memo to the Chamber of Commerce, a blueprint for the slow-motion corporate coup that has taken place,he called on business interests to pack the judiciary with corporate-friendly judges.

The courts in all tyrannies are dominated by mediocrities and buffoons. They make up for their intellectual and moral vacuity with a zealous subservience to power. They turn courtroom trials into opera buffa, at least until the victim is shackled and pushed out the door to a prison cell. They fulminate in caustic tirades at the condemned, whose sentence is never in doubt and whose guilt is never in question.

"It started when Texaco went into Ecuador in the Amazon in the 1960s and cut a sweetheart deal with the military government then ruling Ecuador," Donziger told me for a column I wrote about his case a year ago. "Over the next 25 years, Texaco was the exclusive operator of a very large area of the Amazon that had several oil fields within this area, 1500 square miles. They drilled hundreds of wells. They created thousands of open-air, unlined toxic waste pits where they dumped the heavy metals and toxins that came up from the ground when they drilled. They ran pipes from the pits into rivers and streams that local people relied on for their drinking water, their fishing, and their sustenance. They poisoned this pristine ecosystem, in which lived five indigenous peoples, as well as a lot of other nonindigenous rural communities. There was a mass industrial poisoning."

"The verdict came down, about $18 billion in favor of the affected communities, which is what it would take at a minimum to clean up the actual damage and compensate the people for some of their injuries," Donziger told me. "That eventually got reduced on appeal in Ecuador to $9.5 billion, but it was affirmed by three appellate courts, including the highest court of Ecuador. It was affirmed by the Canadian Supreme Court, where the Ecuadorians went to enforce their judgment in a unanimous opinion in 2015."

Chevron promptly sold its assets and left Ecuador. It refused to pay the fees to clean up its environmental damage. It invested an estimated $2 million to destroy Danziger. Chevron sued him, using a civil courts portion of the federal law famous for breaking the New York Mafia in the 1970s, the Racketeer Influenced and Corrupt Organizations, or RICO Act. Chevron, which has more than $260 billion in assets, hired an estimated 2,000 lawyers from 60 law firms to carry out its campaign, according to court documents. But the oil giant, which did not want a jury to hear the case, dropped its demand for financial damages, which would have allowed Donziger to request a jury trial. This allowed Judge Kaplan to decide the RICO case against Donziger alone. He found credible a witness named Alberto Guerra, an Ecuadorian judge, relocated to the US by Chevron at a cost of some $2 million, who claimed the verdict in Ecuador was the product of a bribe. Kaplan used Guerra's testimony as primary evidence for the racketeering charge, although Guerra, a former judge, later admitted to an international tribunal that he had falsified his testimony.

John Keker of San Francisco, one of Donziger's lawyers on that case, said he was up against 160 lawyers for Chevron and during the trial he felt "like a goat tethered to a stake." He called the court proceedings under Kaplan "a Dickensian farce" and a "show trial."

In the end, Kaplan ruled that the judgment in the Ecuadorean court against Chevron was the result of fraud. He also ordered Donziger to turn over decades of all client communication to Chevron, in effect eradicating attorney-client privilege, a backbone of the Anglo-American legal system with roots dating to ancient Rome. Donziger appealed what was, according to legal experts following the case, an unprecedented and illegal order. While Donziger's appeal was pending, Kaplan charged him with misdemeanor criminal contempt for this principled stance — carrying a maximum sentence of six months — as well as his refusal to turn over his passport, his personal electronics and to refrain from seeking the collection of the original award against Chevron. When the U.S. attorney's office declined for five years to prosecute his criminal contempt charges against the environmental lawyer, Kaplan, using an exceedingly rare judicial maneuver, appointed the private law firm of Seward & Kissel, to act in the name of the government to prosecute Donziger. Neither the judge nor the law firm disclosed that Chevron has been a client of Seward & Kissel.

Kaplan also violated the established random case assignment protocol to personally assign Preska, who had served on an advisory board of the Federalist Society, a group to which Chevron has been a lavish donor, to hear the case. Kaplan had Preska demand Donziger post an $800,000 bond on the misdemeanor charge. Preska placed him under house arrest and confiscated his passport, which he has used to meet with attorneys around the world attempting to enforce the judgment against Chevron.Kaplan managed to have Donziger disbarred. He allowed Chevron to freeze Donziger's bank accounts, slapped Donziger with millions in fines without allowing him a jury, forced him to wear an ankle monitor 24 hours a day and effectively shut down his ability to earn a living. Kaplan allowed Chevron to impose a lien on Donziger's apartment in Manhattan where he lives with his wife and teenage son.

None of this would surprise those targeted by the tyrannies of the past. What would be surprising, perhaps, to many Americans is how advanced our own corporate tyranny has become. Donziger never stood a chance. Neither does Julian Assange. These judges are not, in the end, focused on Donziger or Assange, but on us. The show trials they preside over are meant to be transparently biased. They are designed to send a message. All who defy corporate power and the national security state will be lynched. There will be no reprieve because there is no justice.

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https://www.alternet.org/2021/09/supreme-court-2655063879/

It is a central principle of law: Courts are supposed to follow earlier decisions – precedent – to resolve current disputes. But it's inevitable that sometimes, the precedent has to go, and a court has to overrule another court, or even its own decision from an earlier case.

In its upcoming term, the U.S. Supreme Court faces the question of whether to overrule itself on abortion rights. Recent laws in Texas and Mississippi restrict the right of women to terminate pregnancies in ways that appear to challenge the long-standing precedent of the Supreme Court's 1973 decision in Roe v. Wade, which allowed women to have abortions in most circumstances.

Over the centuries, courts have stated many reasons they should adhere to precedent. First is the idea of equity or justice, under which “ like cases should be decided alike," as one senior federal judge put it. If a court in the past reviewed a particular set of facts and decided a case in a specific way, fairness dictates it should decide another similar case the same way. Precedent promotes uniformity and consistency in the law.

In addition, precedent promotes judicial efficiency: Courts do not have to decide from scratch every time. Finally, following precedent promotes predictability in the law and protects people who have come to rely on past decisions as a guide for their behavior.

But not all precedents are equal, and several current Supreme Court justices have signaled that they might be open to overturning even long-standing rulings that interpret the Constitution.

Reversing precedent is unusual

The Supreme Court rarely overturns its past decisions or precedents.

In my forthcoming book, “Constitutional Precedent in Supreme Court Reasoning," I point out that from 1789 to 2020 there were 25,544 Supreme Court opinions and judgments after oral arguments. The court has reversed its own constitutional precedents only 145 times – barely one-half of one percent.

The court's historic periods are often characterized by who led it as chief justice. It was not until the 1930s under Chief Justice Charles Evans Hughes that it started to overturn precedents with any frequency. These were cases such as United States v. Darby, in which the court began to affirm President Franklin Roosevelt's New Deal economic policies after previously rejecting them as unconstitutional.

Before then, of course, many cases asked the court to interpret clauses of the Constitution for the first time, so there were often no precedents to confront or overturn.

Under Chief Justices Earl Warren, Warren Burger, William Rehnquist and now John Roberts, the court overturned constitutional precedent 32, 32, 30 and 15 times, respectively. That is well under 1% of decisions handled during each period in the court's history.

When is precedent overturned?

For most of its history the court changed its mind only when it thought past precedent was unworkable or no longer viable, perhaps eroded by its subsequent opinions or by changing social conditions.

This happened in Erie Railroad v. Tompkins, a 1938 Supreme Court case overturning a 96-year-old precedent in which the court had constructed rules about how federal courts should handle cases involving parties from different states. The court in Erie said that the original decision proved to be unworkable and had been undermined by the court's own later decisions.

The court has also said that its precedents based on constitutional grounds deserve less respect than those in which the court interprets statutes or laws. The reason is that if Congress thinks the court has erred in a matter of interpreting a statute or law, it is relatively easy for them to overturn it by passing a new law. But it's quite hard to pass a constitutional amendment, so the only real way to update the judicial understanding of the Constitution is to overrule a precedent.

Of course the most famous reversal of precedent is the 1954 Brown v. Board of Education under the Warren Court, in which it reversed Plessy v. Ferguson and struck down segregation under the “separate but equal" doctrine.

Roe v. Wade is an important precedent. In 1973 the Supreme Court ruled that women have a right to terminate their pregnancies. That right was reaffirmed in 1991 in Planned Parenthood v. Casey, with Justices Sandra Day O'Connor, Anthony Kennedy and David Souter noting that an entire generation of women came of age relying upon their right to control their bodies and terminate pregnancies in most circumstances. The justices said it would be wrong to upset that expectation.

Roe has also spurred opposition, with many wanting to overturn it. For years, presidents including Ronald Reagan, George H.W. Bush, George W. Bush and Donald Trump sought to appoint justices to the Supreme Court with the goal of overturning Roe and, with it, abortion rights. Now with a 6-3 conservative majority, the court may be poised to do that.

Justices get more comfortable reversing precedent

Beginning with the Rehnquist court, justices have become more willing to reject precedents they think were badly reasoned, simply wrong, or inconsistent with their own senses of the constitutional framers' intentions. Justice Clarence Thomas has taken this position on abortion. Justice Amy Coney Barrett during her Senate confirmation hearing argued that Roe is not a so-called superprecedent, a decision so important or foundational that it cannot be overturned.

Chief Justice Roberts has been willing to overturn settled law when he thinks the original opinion was not well argued. He did so in Citizens United, a 2010 decisionoverturning two major campaign finance decisions, Austin v. Michigan Chamber of Commerce and part of McConnell v. FEC.

In 2020, Justices Neil Gorsuch and Brett Kavanaugh in Ramos v. Louisiana went out of their way to explain and justify their views on when constitutional precedent may be overturned. They echoed Justice Samuel Alito's discussion in 2018 in Janus v. American Federation of State, County, and Municipal Employees Council Number 31. All three justices said constitutional precedent is merely a matter of court policy or discretion, more easily overturned than a precedent about a law. Sometimes, they said, constitutional precedents can be overruled if later judges view them as wrongly decided or reasoned.

Abortion foes have been preparing practically since Roe was decided to overturn it. They have set both the political conditions and legal justification to overturn Roe, and perhaps this year it will be the time when it finally happens.

David Schultz, Professor of Law, University of Minnesota; Professor of Political Science, Hamline University

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https://www.alternet.org/2021/05/brett-kavanaugh/

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~ brett

https://www.alternet.org/2021/05/justice-elena-kagan/

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https://www.alternet.org/2021/04/supreme-court-conservative/

js edit bd

In Friday's column, I said the Republicans seem to have frightened David Brooks, which suggests the party has frightened respectable white people, too. I consider the Times columnist to be representative of the conventional wisdom of that great globular middle of American politics. The more these people fear the Republicans, the better.

Today, I want to take this a step further. If I'm right in thinking that respectable white people are less willing to give the Republicans the benefit of the doubt, on account of most of them being okie-dokie with Donald Trump's attempt to overturn a free and fair presidential election, this is an ideal time to push them, by way of persuasion, to an important conclusion, to wit: conservatism has become a byword for barbarism.

Consider a recent decision by the United States Supreme Court. In Jones v. Mississippi, the court ruled a person convicted of murder while a minor does not have to be shown to be "permanently incorrigible" to be imprisoned for life without parole. In a 6-3 decision, the court's six conservative justices reversed years of progress in the courts to show mercy toward juveniles who had committed heinous crimes. The AP: "Justice Brett Kavanaugh, writing for the majority, said previous decisions only require a judge to consider 'an offender's youth and attendant characteristics' before imposing a sentence of life without parole. Kavanaugh rejected a more demanding standard."

In fact, Miller and Montgomery held that life without parole for juveniles was justifiable only in the worst of the worst cases—if the convicted person cannot be rehabilitated or, in other words, is "permanently incorrigible." Kavanaugh said his opinion was in keeping with those previous rulings, but it was a departure from them. He said Miller and Montgomery didn't require a more demanding standard, but, um, they did. Only Justice Clarence Thomas was honest. He said the old decisions were wrong anyway.

All this is made worse by the facts of the case. According to Slate's Mark Joseph Stern, quoting Justice Sonia Sotomayor's dissenting opinion, Brett "Jones was 'the victim of violence and neglect that he was too young to escape.' His biological father was an alcoholic who physically abused his mother, who had severe mental health problems. His stepfather abused him, too, using 'belts, switches, and a paddle.' He openly expressed his hatred for Jones. When Jones moved to Mississippi to live with his grandparents, he abruptly lost access to medication he took for mental health issues, including hallucinations and self-harm. Jones' grandfather beat him, as well." Twenty-three days after his 15th birthday, young Brett Jones stabbed his grandpa to death.

Jones was convicted after confessing to the murder. He became a model prisoner. His grandmother, the victim's widow, asked for his release. Jones met the criteria required by Miller and Montgomery.He had demonstrated corrigibility. So the court didn't only make a return to free and open society impossible for Jones. It handed judgment down on the idea of reform, to wit: that reform, however much a free and open society depends on it, is a delusion. No amount of rehabilitation will change bad people. Brett Jones' fate was sealed the moment he was born. That he was born into violence and suffering merely means he deserved it. As for jailing him for life, the court is just furthering a process begun by God, the only true source of goodness and mercy. If all that doesn't sound conservative so much as barbarous, that's because you're right.

That Kavanaugh, and presumably the rest of the conservative justices, were dishonest about whether or not Jones was in keeping with Miller and Montgomery suggests they know a ruling allowing juveniles to be put away for life without any chance of getting out is indefensible. They know Jones is going to get flak from legal activists on the right and the left, people who won Miller and Montgomery thanks to former Justice Anthony Kennedy. They know Jones moves in the opposite direction of democracy, but they are going to move that way nonetheless. Why? They can. They have the power. Because they have the power, they must be good. Otherwise, they wouldn't have it.

The Republicans benefit greatly from the word "conservatism." It sounds like just another school of political thought in free and fair competition with others. It sounds like a way of thinking about the world seeking to conserve the collective knowledge and traditional values of humanity for the sake of our progeny. But that's not the case. The Republicans abandoned democracy after the twin shocks of 2008, Barack Obama's election and the financial panic. Inside a democratic context, conservatism can be healthy. On the outside, it's not. Outside the rule of the majority, it becomes barbarism.

The Republicans used to worry about their national reputation for cruelty. That's why the campaign of George W. Bush invented out of thin air the popular concept of "compassionate conservatism." His politics would be more palatable to respectable white people who did not want to be seen supporting a candidate who'd punch down as president. Punching down, and enjoying it, has become the point of conservatism. This is what we need to press respectable white people into understanding clearly.

FROM YOUR SITE ARTICLES

RELATED ARTICLES AROUND THE WEB

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corps packing scotus:

https://www.republicreport.org/**2018/**how-did-powerhouse-gop-pr-firm-crc-mess-up-kavanaugh-so-bad/

We now know that when conservative lawyer and close Brett Kavanaugh friend Edward Whelan attempted his disastrous Perry Mason tweetstormsuggesting that one of Kavanaugh’s prep school classmates was the one who assaulted Christine Blasey Ford, he did not do so alone. He was, at least, aided and abetted by the big DC firm CRC Public Relations. According to Politico, CRC “guided” Whelan through the unveiling of the accusation, with CRC’s president, Greg Mueller, helping Whelan in advance of the tweets to “stoke the anticipation”; key conservatives touted the announcement in advance.

CRC is one of the most powerful and influential conservative political PR operations. Its clients include the Koch brothers’ Americans for Prosperity, Grover Norquist’s Americans for Tax Reform, and the climate change denying Institute for Energy Research. It also has advised an enormous number of major corporations and trade associations, including Amazon, Chevron, General Motors, Microsoft, National Association of Manufacturers, Northrop Grumman, Pharmaceutical Research & Manufacturers Association, and Pizza Hut. The firm is perhaps best known for its work devising the ugly Swift Boat attack on 2004 Democratic presidential nominee John Kerry.

More relevant to this discussion, though, CRC has been aiding the dark money advocacy group Judicial Crisis Network (JCN), the people behind the determined, expensive public campaign to confirm conservative judges and, in the last administration, to block Obama picks for the federal courts. JCN, tied to the conservative lawyers’ group the Federalist Society, spent big to help confirm Neil Gorsuch and now has pushed hard to get Kavanaugh on the court, including with a relentless TV ad buy (e.g., the female friend of Kavanaugh who endlessly tells viewers “I’m a teacher, I’m a coach”).

UPDATE 09-25-18: Politico [reports that Federalist Society executiveVP Leonard Leo has “raised upwards of $15 million from conservative donors” for the JCN communications campaign supporting Kavanaugh. Politico also reports that Whelan “worked feverishly” with Leo (as well as CRC) to “hype” Whelan’s mistaken identity theory.]

From 2013 to mid 2017, according to IRS filings, JCN paid CRC about $5.1 million. The group is obviously spending even more for CRC’s help on Kavanaugh.

If CRC’s people are talented enough to get all this business, how could they have guided the Whelan disaster, the Thursday evening tweetstorm that used maps of Chevy Chase, Maryland, and photos of a house there and two prep school boys to point the finger, by name, at Kavanaugh’s classmate — a debacle so bad, so thoroughly denounced by a wide range of commenters, that the next morning Whelan deleted the thread and apologized for what he called “an appalling and inexcusable mistake of judgment”?

I think it was a Hail Mary pass. I doubt CRC saw the thinly-sourced Whelan accusation as a sure thing. I suspect they hoped the bizarre Twitter attack would spook Dr. Ford and deter her from testifying: Perhaps if she saw that the Kavanaugh forces were prepared to attack an innocent bystander classmate — now a middle school teacher — and burden his life, they would stop at nothing, perhaps Swift-Boating her friends and family with similar recklessness.

I think CRC believed that they had to try, because if Dr. Ford testified, the Kavanaugh nomination might be dead.

Hours after the tweetstorm, Ford issued her resolute statement — “I knew them both, and socialized with [the other classmate]…. There is zero chance that I would confuse them” — and the charge was thwarted. Whelan had to retreat.

But of course his phony theory will stay alive in the hearts and memes of Trump supporters.

The White House and Senate Republicans all denied they had anything to do with the Whelan attack. But there are suggestions otherwise. Whelan was caught by Dr. Ford looking at her LinkedIn profile before her name was made public, but after the Washington Post had asked the White House about her, so it’s apparent that he’s closely tied to the Trump administration’s efforts to confirm his friend Kavanaugh. And this morning, Garrett Ventry, a Grassley Judiciary Committee communications aide, resigned his post after it was reported that he left his previous political job, in North Carolina, amid a charge of sexual harassment. When Ventry joined Grassley’s staff he took a leave of absence from his employer — CRC Public Relations.

It’s been clear for a while that there’s a multi-million dollar campaign by shadowy special interest donors to make a Supreme Court justice out of Brett Kavanaugh, whose judicial record indicates he will cast the deciding vote for big corporations and against workers and consumers. What we didn’t know — until the Whelan/CRC attack and Friday’s nasty misogynist tweet by Donald Trump — was how vicious the architects of this effort were prepared to play it.

But Dr. Ford has not backed down.

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https://www.republicreport.org/2018/who-kavanaugh-is-really-for-big-corporations/

ref

Brett Kavanaugh now faces a credible charge of sexual assault, as well as powerful evidence that he repeatedly lied to the Senate to conceal, among other bad deeds, his improper use of stolen documents as a Bush White House aide. Even religious conservatives and others at the grassroots who have supported Kavanaugh should take this moment to reconsider whether this particularly nominee is worth fighting for. Because, although as a Supreme Court justice Kavanaugh might well vote to advance the social conservative agenda, his real specialty as a judge has been supporting large corporations and harming the interests of American workers and consumers. And the millions of dollars supporting his candidacy are coming from a network of Washington lobbyists and big business interests.

Here are some of the key figures in the corporate special interest network that’s aiming to put Brett Kavanaugh on the Supreme Court:

— C. Boyden Gray is the D.C. swamp personified. He’s a corporate lobbyist who was the White House counsel under President George H.W. Bush. He has been a central player in pushing GOP judicial nominees for decades, while also serving the interests of some of America’s wealthiest corporations. Gray published an essay this month arguing that Kavanaugh should be confirmed in part because he will protect the rights of small businesses over those of big business and big government. But the argument hardly seems credible coming from Gray, whose own business is based on trading on the relationships he developed as a top Washington insider to advance the interests of clients in the oil and chemical industries and other monied special interests.

Gray, a wealthy heir to the R.J. Reynolds tobacco fortune, has served on the board of the corporate-backed legal group the Federalist Society as well as of Citizens for a Sound Economy, a business group that was founded by the billionaire oil and chemical industry Koch brothers and later morphed into the Koch advocacy mega-operation Americans for Prosperity. Gray invited President Trump to his fancy Georgetown home earlier this year for a dinner with wealthy Republican donors, including other lobbyists and oil and banking executives, as part of efforts to raise $100 million this year, mostly in big donations, to support Trump and GOP candidates.

—The Judicial Crisis Network (JCN) is the conservative advocacy group that is leading a multi-million dollar public campaign, with heavy TV advertising, to confirm Kavanaugh. JCN is guided by Leonard Leo, who is also the executive vice president of the Federalist Society, and the man who has Trump’s ear when it comes to picking judges. The “dark money” JCN doesn’t reveal its donors, but it’s tied to the political network of the Koch brothers, Boyden Gray, and mysterious wealthy contributors. JCN was launched with seed money from real estate magnate Robin Arkley II — who has made big money foreclosing on the homes of working people.

— Jon Kyl was, until recently, a lobbyist at the DC mega law firm Covington & Burling, which has represented big tobacco’s Philip Morris, oil giant BP, retailer Wal-mart, energy and construction titan Halliburton, and other big corporations. Last year, the Judicial Crisis Network paid Kyl, who had been a U.S. senator from Arizona, to push the nomination of Trump’s previous Supreme Court pick, Neil Gorsuch. The Trump administration this year hired Kyl to shepherd the Kavanaugh nomination, a role that ended when Arizona’s governor tapped Kyl to return to the Senate to take John McCain’s seat and, presumably, to vote to confirm Kavanaugh for the high court.

— Lisa Blatt wrote an article last month entitled, “I’m a Liberal Feminist Lawyer. Here’s Why Democrats Should Support Judge Kavanaugh,” and she introduced Kavanaugh at his Senate hearing. Each time, in vouching for Kavanaugh as a person of integrity and empathy, Blatt stressed her liberal credentials as well as her impressive background as a lawyer who has argued before the Supreme Court more times than any other woman. What Blatt failed to explain is that she’s a partner at the big DC corporate law firm **Arnold & Porter, where she represents giant tobacco and pharmaceutical interests seeking to defeat claims by workers and consumers.

We haven’t heard from the feminist Blatt in the wake of Christine Blasey Ford’s allegation that Kavanaugh sexually assaulted her during high school, but a group of D.C. Republican women have spoken out on his behalf. As Politico reports, there are a lot of lobbyists for big corporations, like Dow Chemical and Citigroup, in this band of women for Kavanaugh.

—The Republican Attorneys General Association (RAGA) is running a “Confirm Judge Brett Kavanaugh!” campaign on its website. State attorneys general frequently represent their states before the U.S. Supreme Court, and the concept of a group of them lobbying for their own Supreme Court justice is ethically concerning. But it’s worse when you consider that RAGA’s activities are funded by big corporations. RAGA’s biggest donor — providing $2.9 million in 2017 and $1.7 million already in 2018 — is the Judicial Crisis Network. It also gets money from numerous large corporations including Koch Industries, ExxonMobil, Monsanto, Facebook, Altria, Coca Cola, Wal-Mart, Mastercard, Johnson and Johnson, UPS, and Murray Energy, as well as the U.S. Chamber of Commerce and the National Rifle Association (RAGA’s second largest donor in 2017).

— The Ethics and Public Policy Center is a Washington think tank whose president, Edward Whelan, briefly shook up the Kavanaugh debate Thursday night when he played Twitter Sherlock Holmes and accused a Kavanaugh classmate by name as the possible assaulter — only to delete his thread and apologize the next morning for “an appalling and inexcusable mistake of judgment.” Whelan is a close friend of Leonard Leo and of Brett Kavanaugh, with whom he worked in the George W. Bush White House. In devising this Twitter rollout, Whelan was advised by the big DC PR firm CRC Public Relations; CRC’s clients include the Judicial Crisis Network ($3 million from JCN to CRC in 2016), the Federalist Society, and the Kochs’ Americans for Prosperity, as well as corporations including Chevron, Visa, and Microsoft. UPDATE 09-22-18 11:30 am: Garrett Ventry, a Grassley Judiciary Committee communications aide on leave from CRC, [resigned this morning after it was reported that he left his previous job amid a charge of sexual harassment.] The Ethics and Public Policy Center has received funding from the family foundations of the billionaire industrialist Koch brothers as well as other wealthy interests.

Why are all these corporations and swampy DC lobbyists fighting so hard for Brett Kavanaugh? They have important interests, every year, in cases before the U.S. Supreme Court — cases that decide whether companies can bust unions and discriminate against workers, whether banks must treat customers honestly, whether companies must treat investors fairly, whether big tech companies can charge tolls to use the Internet and can spy on customers, whether predatory for-profit colleges can get away with deceiving students, whether makers of defective products and dangerous pharmaceutical can get away with harming consumers, and whether companies can create monopolies that allow them to control markets and jack up prices.

While a range of Americans are focused on the impact of a five-justice conservative bloc on issues like civil rights, reproductive choice, and other political values, perhaps the most powerful and unifying feature of such a bloc would be its deference to the interests of big business over workers and consumers.

Brett Kavanaugh’s record as a judge on the U.S. Court of Appeals for the District of Columbia Circuit shows that he has usually sided with big business interests — like the U.S. Chamber of Commerce, National Association of Manufacturers, the American Petroleum Institute — in cases involving protection of labor, consumers, health, safety, and the environment.

That’s why big money and big corporations want so badly to confirm Brett Kavanaugh, despite enormous questions about his honesty and integrity.

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an 720

Private memos reveal Brett Kavanaugh tried to ‘sidestep’ Supreme Court cases on abortion and Trump’s financial records

THIS WEEK, Mitch McConnell is bringing the Senate back in session ... no, it's not to pass emergency coronavirus relief ... it's to ram through the confirmation of some of Trump's most unfit judicial nominees yet!

Justin Walker -- a Brett Kavanaugh protégé who not only is a right-wing extremist, but also severely lacks experience and has been rated "not qualified" by the American Bar Association (ABA) -- will be considered by the Judiciary Committee in a matter of days for his nomination to the powerful DC Circuit Court of Appeals. ALL senators need to know that Americans are paying attention and we REJECT Trump and McConnell's efforts to rubber-stamp unfit judges, especially during the current crisis.

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https://www.alternet.org/2020/04/conservative-supreme-court-justices-tortured-reasoning-in-the-disastrous-wisconsin-case-is-a-thin-excuse-for-their-true-purpose/

https://www.alternet.org/2020/04/the-supreme-court-is-poised-to-extend-gun-rights-at-the-worst-possible-time/

no lnx

The Supreme Court is poised to extend gun rights at the worst possible time

Supreme Court of the United States

Written by Bill Blum / Independent Media Institute April 8, 2020

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” —Second Amendment to the United States Constitution

As the deadly COVID-19 contagion sweeps across the country, gun sales are surging, spurred in many regions by panic buying and purchases by first-time firearm owners. Fearful and insecure Americans are taking advantage of weak and ineffective gun-control laws and stocking up, as President Trump might say, “like never before.”

Meanwhile, the Supreme Court is poised to issue its first major Second Amendment opinion in more than a decade in a case that originated, fittingly, in New York City, now the epicenter of the COVID-19 outbreak in the United States. The case—New York State Rifle & Pistol Association Inc. v. City of New York—has the potential to vastly extend the rights of gun owners, and not just in New York, but throughout the entire nation.

At issue is a New York City “rule” (the term the city uses for its local ordinances) that was adopted in 2001 to prohibit residents from transporting licensed handguns beyond municipal limits. The rule was challenged in a federal lawsuit filed in 2013 by the NRA’s New York affiliate and three individuals. A district court judge ruled in the city’s favor in 2015, as did the Second Circuit Court of Appeals in 2018. The Supreme Court, however, agreed to review the case at the NRA’s request in January 2019, and heard oral arguments in December.

The plaintiffs contend that the city’s handgun transportation ban should be declared unconstitutional because it conflicts with the Supreme Court’s landmark 2008 decision on the Second Amendment, District of Columbia v. Heller.

In Heller, the Supreme Court struck down a ban on handgun possession in the nation’s capital, ruling for the first time that the Second Amendment protects an individual right to gun ownership. Deeply controversial and hotly contested, Heller split the Supreme Court along strict ideological lines, and was resolved on the basis of a 5-4 vote of the justices. The late Justice Antonin Scalia’s majority opinion stood the prior judicial consensus on the Second Amendment on its head, rejecting the great weight of prior scholarship and earlier court opinions, including the Supreme Court’s 1939 decision in United States v. Miller, that had construed the amendment as protecting gun ownership only in connection with service in long-antiquated state militias.

Scalia’s opinion was met by a blistering dissent written by Justice John Paul Stevens, who retired from the bench in 2010 and passed away last year. Drawing on a wide array of historical sources, Stevens chided Scalia for ignoring the actual debates that took place during the founding era on the ratification of the Constitution and the drafting of the Second Amendment. Those debates, in Stevens’ view, demonstrated the amendment’s purpose was not to safeguard individual gun rights, but to guarantee the survival of the militias as a “collective right” of the citizenry as an alternative to the creation of a large federal standing army.

Stevens lost the battle of persuasion in Heller, and in 2010, in another 5-4 decision that also featured a Stevens dissent—McDonald v. Chicago—the Supreme Court extended Heller, holding that the individual right to keep and bear arms was incorporated by the 14th Amendment’s due process clause and hence was applicable to the states and local governments. The Second Amendment, as interpreted by Scalia, thus became the law of the land.

Although Scalia and Stevens are no longer with us, the ideological divisions they represented remain on the Supreme Court today. Indeed, when it comes to gun rights, the current court is even more conservative than it was in 2008. Justices Neil Gorsuch and Brett Kavanaugh, both appointed by Trump, are outspoken proponents of Scalia’s vision of the Second Amendment. And the tribunal’s remaining conservatives—Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito—participated in Heller and joined Scalia’s majority opinion.

Still, Heller by no means precluded all measures of gun control. As the Second Circuit noted in its evaluation of the New York handgun transportation ban that is now before the court, Heller was technically limited to possession of guns in the home, and established no clear limits on legislation aimed at regulating gun rights outside of the home.

“Like most rights,” Scalia wrote in Heller, “the right secured by the Second Amendment is not unlimited… [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

And in an enigmatic footnote to the above paragraph, Scalia added: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”

Adhering to Scalia’s reasoning, in the years following Heller, lower courts have upheld a broad range of state and local gun-control regulations, a dynamic that has prompted the NRA and other gun-lobby groups to urge the Supreme Court to take up another Second Amendment appeal to reaffirm the amendment’s importance and place stricter limits on gun control. They may have found the perfect test case in the New York transportation ban. Like Heller, the New York ban concerns an outright prohibition, which will be hard, if not impossible, to justify before the court’s conservative majority.

Realizing it would likely lose the case, New York City amended its transportation rule in June to permit residents to take their handguns to second homes, businesses or shooting ranges outside city limits. And in July, the city filed a formal motion with the Supreme Court, requesting that the case be dismissed as moot. The court denied the motion in October, setting the stage for another Second Amendment showdown.

In December’s oral arguments, the city again asked the court to moot the case. The city made no attempt to defend the transportation ban.

Unfortunately, given the city’s capitulation and the Supreme Court’s right-wing orientation, the only real remaining question is the scope of the NRA’s inevitable victory. Even if the court reconsiders the city’s request and enters a dismissal order, the NRA will walk away with a significant win, having forced the city to rescind one of the most stringent gun-control laws in the country. On the other hand, a decision on the merits on constitutional grounds in the NRA’s favor would reward the organization with an even bigger triumph, endangering gun-control laws everywhere.

A nation awash in firearms in the grip of the COVID-19 pandemic awaits the court’s decision, which is expected by the end of June.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

This article was produced by the Independent Media Institute.

trms had head of legis in full ppe saying perfectly safe mofo

republicans can’t seem to help themselves from weaponizing this public health crisis to advance their own self interest and cement their grip on power. And they’re getting help from right-wing judges – including the far-right majority on the U.S. Supreme Court!

Yesterday, the Wisconsin GOP – with the help of the right-wing majority on the Supreme Court – forced Wisconsin voters to choose between risking their health and the health of others and exercising their right to vote ... during the pandemic ... with the number of polling places drastically reduced so, for instance, voters in Milwaukee, who usually have nearly 200 polling places, would have to crowd into FIVE.

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omg

https://www.alternet.org/2020/03/bill-moyers-and-dahlia-lithwick-break-down-how-the-courts-have-proven-they-have-trumps-back/

Bill Moyers and Dahlia Lithwick break down how the courts have proven they have Trump’s back

President Donald J. Trump, Judge Brett M. Kavanaugh and Anthony M. Kennedy, retired Associate Justice of the Supreme Court of the United States, walk together Monday, Oct. 8, 2018, to the East Room of the White House in Washington, D.C. (Official White House Photo by Joyce N. Boghosian)

Written by Bill Moyers / BillMoyers.Com March 24, 2020

Dahlia Lithwick: Hi there.

...

Bill Moyers: I guess you won’t be hanging out at the Supreme Court anytime soon, right?

Dahlia Lithwick: No. No, they’re not hanging out there either, so. It’s really unprecedented to just scuttle arguments. Justice Ginsberg is 87, so I think it is for the best. But it is really extraordinary times that we are living through.

Bill Moyers: Yeah, I remember something you said, “If ever there was a time for the American legal profession to put down its yellow pads and stand up for the rule of law, it’s today—”

Dahlia Lithwick: Yeah, after Donald Trump was elected, I felt so strongly that lawyers were gonna be the bulwark, that it was clear that he was gonna be assailing the rule of law, and then I really believed that lawyers were going to find lines that couldn’t be crossed.

And that the United States was a country that was built on the proposition that there is no king, and that you have nothing if you don’t have the rule of law. I mean, I think I really believed all that. And who are the gladiators in that fight if not the lawyers?

I did expect that lawyers would be on the front lines. And I watched the day of the travel ban a week after the inauguration — it was the lawyers who ran out to the airports. It was the lawyers who parked themselves at the baggage claims [and] held up signs that said, “I’m just a tax attorney, but I’m here to help you get into the country–” I mean, I really thought that was setting a precedent wherein the lawyers were always gonna be the first ones out. And I’m not sure that materialized the way I expected.

Bill Moyers: If lawyers are failing us, where are we?

Dahlia Lithwick: I think there are so many component pieces of that. I think that you can look at the Mueller Report and the ways in which the findings of that report were distorted by Donald Trump’s own attorney general to imply that nothing had gone wrong.

I think you can look at declarations of emergency at the border last year, where no emergency existed, just to get funding that Congress had already said they were declining to offer. The travel ban itself. One after another, actions taken that really pushed the boundaries of what the executive branch can do.

And just the sort of dispiriting ways in which the Justice Department has doubled down on pressing some of those truly lawless actions, and so we saw Bill Barr at the highest levels of the Justice Department interfere with the Roger Stone sentencing.

This was unprecedented. Nobody had ever seen the president by tweet say, “Maybe we should change the sentence,” and have Bill Barr and very, very senior members of the Justice Department intervene — where line prosecutors had been working on this case for years. And I think we saw on that day, we saw four DOJ (Department of Justice) lawyers walk away from the case, one from the Justice Department, rather than be involved in that prosecution anymore.

But I think it can’t be these tiny little acts of resistance. It really does require the kinda thing that I think we saw in the days following, where we had thousands of prosecutors signing memos and immense numbers of former Justice Department officials saying, “We can’t proceed this way.”

But I think maybe the answer to your question is that so much of the rule of law, as it turns out, was built on soft norms, not on regulations and statutes and constitutional directives. And I think that we all think that this machinery is more robust than it really is. It turns out it’s tissue thin if we don’t fight for it.

Bill Moyers: I used to think that norms were sort of the unwritten Constitution like English procedures and propriety. But that doesn’t seem to hold up anymore.

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Dahlia Lithwick: I remember when Merrick Garland was denied a hearing or a vote or even courtesy meetings in the Senate. And I thought, at the time, this is a norm. It is a norm that the president gets to put up a nominee, and that person gets a hearing and a vote. And I think that, time and time and time again in the last few years, I’ve found myself answering these questions about how can this be happening? How can Bill Barr personally intercede in the Roger Stone sentencing?

I think the answer is those were a bunch of norms that were put together post-Watergate. They never had the force of law. It was a set of decisions that this is how the polity would thrive post-Watergate. And I think it’s just such a chilling lesson for all of us that this is a series of gentlemen’s agreements about how we conduct ourselves; it’s not the law.

Bill Moyers: In the meantime, as you’ve written,Trump has weaponized the law in several ways. Talk about that for a moment.

Dahlia Lithwick: Well, I think the most chilling [thing] that we are seeing now is certainly the use of his own Justice Department to go after anybody who’s been disloyal. And also, as we just mentioned, using the Justice Department to exculpate, whether it’s through a lighter sentence for Roger Stone, or using his pardon power to pardon people like Joe Arpaio right at the very beginning.

Trump: I stand by my pardon of Sheriff Joe and I think the people of Arizona who really know him best would agree with me.

Bill Moyers: Arizona Sheriff Joe Arpaio who took a hard-line against immigrants.

Dahlia Lithwick: Who had people in camps dying on his watch, who had this hard-line, anti-immigrant worldview that was so brutal — that there was no question that what he was accused of doing, he had done. And I think that time and time and time again, we’re seeing Donald Trump use the pardon power to say, “There’s really no such thing as white collar crime. There’s no such thing as being too hard on illegal immigrants. There’s no such thing as being — whatever it is that he himself — sometimes — engages in.”

And I think that, in addition to really kind of rejiggering the entire Justice Department so that it seems as though it answers to him personally, I mean, that’s always been his worldview. He wanted an attorney general and he complained about Jeff Sessions, that Jeff Sessions wasn’t loyal, and he wanted Jim Comey to be loyal. Even Don McGahn, his White House counsel, who ended up leaving, was not sufficiently loyal.

And I think he’s really got a notion that he’s like a Nero character — an emperor — and that the law works for him and responds to him. And in so many different configurations, we’ve seen him rescinding DACA by tweet. Making decisions about the dreamers thousands and thousands of dreamers on a whim. Making decisions about “don’t ask, don’t tell” on a whim.

And then we have the entire apparatus of government scurrying to effectuate that, to make it happen for him. But I guess the paradox is not just that he’s weaponized the rule of law, but that the rule of law has rushed to meet him, and to bolster his notions that he is above the law.

Bill Moyers: How do you battle with someone who thinks the law is just a win-or-lose game? And a commodity you can buy and sell? How do you deal with that? How do we fight back?

Dahlia Lithwick: One of the most revelatory books I’ve read this year is by an attorney whose name is Jim Zirin. He has a book out that talks about all the ways in which Donald Trump as president is behaving exactly the way Donald Trump as quote/unquote real estate mogul behaved.

There was a playbook, and it long predates the presidency. This was, believe it or not, the Roy Cohn playbook that goes all the way back to Donald Trump and his dad when they were accused of racist practices in rentals long ago. And it’s a really useful sort of road map to know what the behaviors are. And the behaviors are pretty typical if you are a real estate, very, very wealthy real estate mogul because it’s the same things over and over: It’s sue everybody, chill people from coming forward by terrorizing them. Make sure that your plaintiffs are subject to heinous, horrific abuse, repeated abuse, until they can’t [fight back] anymore.

Bill Moyers: And at the right time, to your advantage, you walk away from the mess you’ve created, declare bankruptcy, and leave the laborers, the contractors, the everyday workers, the creditors to bear the costs, right?

Dahlia Lithwick: Just bury them in litigation, bury them in discovery so that they don’t wanna go forward with the lawsuits. File all sorts of frivolous, frivolous claims, knowing that at some point, you’re just exhausting the other side. I mean, these are just the ways that this person who in his capacity as Donald Trump before he was president just used the levers of the legal system constantly.

He would be sued. He would have people who did work on his properties that he never paid. Trump University, the casino bankruptcies, every one of these lawsuits — he just fought back by hiring armies of lawyers who did what he said. And you’re quite right. The cost of picking up the debris afterwards, whether it’s Trump University or Trump steaks or whatever the detritus is, that’s not on the rich guy. That’s not on his lawyers. They profit either way.

That is exactly how he uses his private attorneys. That’s how he was using Rudy Giuliani, to go and stir up dirt and all sorts of false claims about Joe and Hunter Biden in Ukraine. So he has a very myopic kind of transactional view of lawyers are his — they’re his plumbers. They get the job done.

Bill Moyers: And they’re well paid for it.

Dahlia Lithwick: We’re learning there are many fundamental flaws in the system of capitalism that we have tethered ourselves to. But one of the flaws is that, for a very, very long time, rich men — whether it was Harvey Weinstein or Donald Trump — very, very rich men were able to surround their selves with armies of loyal attorneys who would do whatever they were asked to do. And that’s exactly how he’s trying to use his Justice Department today.

Bill Moyers: When a president takes his playbook from a crooked lawyer like Roy Cohn in the 1970s and uses it to run the United States government today, what are we supposed to do?

Dahlia Lithwick: It’s such a different paradigm because every president, whether or not you agreed with George Bush, used his White House counsel in certain ways, [and] used the Justice Department and his attorney general in certain ways. But [now] we have a president who simply just indefatigably using his lawyers to beat up the weak and to protect his own usually financial interests. And so there’s not a model on a big constitutional scale for what you do when the president wanted a Roy Cohn, got a Roy Cohn in Bill Barr, and is proceeding to just break stuff.

Bill Moyers: Has it occurred to you that the president prefers to govern by chaos, I mean, it detracts journalists from covering other things he’s doing. I’m reaching right now on my desk for a story I read just this morning inCounterPunch. The headline is, “The Supreme Court is set to strike a major blow against social and environmental protections.” It would amount to the evisceration of regulations that protect our health and safety as citizens. Did you know about this? Are you aware of this?

Dahlia Lithwick: Yeah. This is part of a really — and you’re so right. This is happening almost in the dark of night. It’s happening on page A12, if there at all, because page A1 is the chaos. And way, way back, under the fold in the middle of the paper, there is this stealth attack on government agencies and their ability to regulate themselves. And you’re also quite right, it is happening, at the U.S. Supreme Court under our noses. And, what you’re describing is the sort of ascendancy of what was once a kind of fringe theory that Justice Antonin Scalia put forth about agencies and the limits on their power.And this idea of the unitary executive, that every single thing in the executive branch is subordinate to the president.

That was a crackpot idea once upon a time. And you are quite right, it is pushing its way into the very epicenter of several arguments that the Court is hearing this year. And this idea that — it’s called technically the nondelegation doctrine, and it essentially says that we can gut agency authority, for instance the Clean Air Act, the Clean Water Act. We can gut agencies’ ability to have kind of ongoing oversight of problems.

It was once seen as a really fringe idea that is now being used. I think Justice Elena Kagan has described it as it is going to be used to end government as we know it.

Bill Moyers: She’s actually said that the conservative majority will eventually essentially rule that, quote, “Most of the government is unconstitutional.” And it makes me think, and I wonder if it does you, that the right wingers on the Court were put there to enact the Republican platform into law.

Dahlia Lithwick: It’s such a good question and it’s funny because it gets ignored. We get very, very focused, I think, on Neil Gorsuch and Brett Kavanaugh and questions of abortion, and maybe to a lesser degree questions of religious liberty, right? The Hobby Lobby questions about whether religious dissenters can be forced to do things they don’t want to do.

But I think you’re exactly right, that simmering under those issues both Kavanaugh and Gorsuch were quite openly kind of auditioning to be on the Supreme Court with their writings, very explicit writings in the vein that you’re describing. Writings that would seek to do away with the administrative state, do away with the power of government regulatory agencies, whether it’s the (CFPB Consumer Financial Protection Bureau) or the EPA. Efforts to essentially say all of those agencies answer to the president and he can hire and fire at whim. And he can constrain their authority at whim.

That was not a stealth campaign. They were doing that, both justices — Gorsuch and Kavanaugh — were doing that very, very openly, talking about those things. And I think you’re quite right, we got very, very hyper-focused in both of their confirmation hearings on other issues, equally important issues. But I think we looked away from their records on hobbling federal government as we know it. And you’re quite right, I think they were put on the Court to do just that. And we’re seeing, in two short years, they are doing just that.

Bill Moyers: Brett Kavanaugh wrote last year in favor of forbidding Congress from allowing federal agencies, quote, “To exercise regulatory authority over a major policy question of great economic and political importance.” But I thought Congress was supposed to deal with questions like that. What do you make of this?

Dahlia Lithwick: What I make of it is exactly the words you just said, which is this would give the Supreme Court itself authority to say, “Yeah, we just don’t like these regulations. These ones are not good. This agency isn’t right.” And to really eviscerate the regulatory state as we know it. And this goes way beyond the 2020 election. If you have a 5-4 majority on the Court that really believes that using these kinds of doctrines to chip away at agency power, this is going to be kind of sealed into the mix for decades.

Bill Moyers: So you’ve written, Dahlia, about how, in recent years, the Supreme Court has issued ruling after ruling awarding more power to large corporations. This would be the biggest payoff ever to the big businesses, wouldn’t it? I mean, the Republican-controlled Court would have a veto power over all federal regulations?

Dahlia Lithwick: It’s unbelievable. And again, I think it is a pincer when you look at it — twinned with — the issues you’re talking about where, the Chambers of Commerce and big, big corporations have never won the way they’re winning now. Their win rate in the John Roberts court is like nothing we have seen since before the New Deal.

And so I think what you’re seeing is, on the one hand,gutting of unionswhich this Court has been involved in. Giving huge rights to corporations, whether it’s Citizens United or Hobby Lobby. This slow progression of doing away with workers’ rights and protections for the little guy, protections in all sorts of contexts.

And, at the same time, as you say, the cherry on top is doing away with agency regulations that regulates big businesses. And these big business cases, whether they’re affording huge new rights to businesses, or big wins to businesses that are trying to fight back any attempt to cabin corporate power and union power.

The Clean Air Act, the Clean Water Act, the CFPB — any of these agencies — can be just tossed away at the whim of the Court.Those two things together are a huge, huge boon for business, and they are massively costly, not just for workers, but for the environment, and for women’s rights, and for the rights of the elderly. So many entities that are not afforded protections when the Court is only looking out for corporations...

an 220

Those were the Anthony Kennedy days’: Brett Kavanaugh is getting ready for his first major abortion case

When Justice Brett Kavanaugh joined the U.S. Supreme Court in…

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kos 1219

shadowy and immensely powerful Federalist Society is a driving force behind the right-wing takeover of the federal judiciary. It is responsible for the mob of ultra-conservative federal judges attacking our civil rights and giving free rein to massive corporations, including the right-wing extremist majority on the Supreme Court.

Right now, the Federalist Society is also working overtime to rehabilitate the reputation of disgraced Supreme Court Justice Brett Kavanaugh, who was credibly accused of sexual assault by multiple women, and they have a powerful ally: Facebook. Facebook was a “Gold Circle” sponsor – the highest level – of the Federalist Society's annual black-tie gala, where Kavanaugh was the keynote speaker and honored with a standing ovation. Facebook apparently decided it could curry favor with right-wing, pro-corporate Republicans by helping to rehabilitate Kavanaugh. And this isn't the first time Facebook has sided with Kavanaugh – one of its top executives even sat behind him at his confirmation hearing just after Dr. Christine Blasey Ford testified that he had sexually assaulted her.

Facebook is already reeling from scandals and facing waves of investigations and fines for data breaches and potential fraud, and we need to let them know: We stand with survivors, and Facebook’s support for Kavanaugh and the right-wing institutions responsible for his lifetime appointment to the Supreme Court is unacceptable.

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nyt? book coming out

more fratboy junk waving, but 20 witness, guy pinged FBI diff party no response

https://www.alternet.org/2019/09/most-top-democratic-presidential-candidates-are-demanding-kavanaughs-impeachment

the DOJ is suing Omarosa for violating the same law Brett Kavanaugh is accused of violating: Ex-White House ethics chief

1219 an

Trump’s Supreme Court nominees lambasted him behind his back — and Kavanaugh thought he was ‘a buffoon’: report

Alex HendersonDecember 2, 2019

Although President Donald Trump isn’t known for reading any more than he absolutely has to, that doesn’t prevent him from railing against books he considers unfavorable to him — for…...

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https://www.scotusblog.com/2018/08/judge-kavanaugh-and-freedom-of-expression/

Judge Kavanaugh and freedom of expression

Timothy Zick is the Mills E. Godwin, Jr., Professor of Law at William & Mary Law School.

As Jonathan Adler recently observed, Justice Anthony Kennedy’s “expansive conception of the First Amendment’s protection of freedom of speech is among his most important judicial legacies, marking his jurisprudence from his first days on the Court to his last.” Although it is not clear whether Judge Brett Kavanaugh would compile a similar record on the Supreme Court, we can make a few tentative predictions based on his record in the U.S. Court of Appeals for the District of Columbia Circuit. (Of course, all of the usual caveats associated with predicting the behavior of lower court judges once elevated to the Supreme Court apply.) This post reviews cases in which Kavanaugh either joined or authored opinions concerning freedom of speech and, to a lesser extent, other First Amendment rights (specifically, press and petition). It excludes decisions and opinions in the area of campaign finance, which were discussed in a prior post.

Kavanaugh’s record in First Amendment cases demonstrates a precedent-based or “common law” methodology, one that also relies on the lessons of history regarding free speech, press and petition rights. In substance, his record suggests that Kavanaugh would not expand the speech rights of government employees and might interpret the government speech principle rather broadly. He has also concluded that noncitizens abroad do not enjoy First Amendment rights – an issue the Supreme Court has not directly decided. However, in many contexts, Kavanaugh would likely be a consistent supporter of First Amendment rights. He has emphasized the importance, to democratic self-governance and the search for truth, of robust free speech, press and petition rights. He has adopted an expansive interpretation of editorial and speaker autonomy rights, is generally skeptical of measures that compel speech and association, and views government power to regulate private speech as sharply circumscribed. Looking forward, Kavanaugh’s appointment could have a significant impact in regulatory areas such as telecommunications and data privacy. Notably in this regard, his opinions suggest strong support for the speech rights of corporations, including digital-content providers.

Speech in public forums

Although his record in this area is modest, Kavanaugh has voted to invalidate restrictions on free speech rights in public forums. However, he has made clear that this support does not extend to actions that deface or destroy public property.

In Boardley v. U.S. Department of Interior, Kavanaugh joined an opinion invalidating National Park Service rules that required permits and limited speakers to certain free speech areas. A group seeking to distribute religious tracts near Mount Rushmore National Memorial challenged the rules. The D.C. Circuit declined to hold that all national parks governed by the NPS rules were traditional public forums, where free speech and other First Amendment rights are at their zenith. However, the court concluded that the free speech areas constituted designated public forums for First Amendment purposes. The court held that the regulations were content-neutral, but were not narrowly tailored to further the government’s interests. In particular, the court took issue with application of the rules to individuals and small gatherings, who were particularly burdened by the permit and free speech zone requirements. It concluded that the regulations effectively forbade spontaneous speech in public parks, infringed on individuals’ ability to engage in anonymous speech, and failed to leave open ample alternative forums for expression.

However, in a brief concurring opinion in Mahoney v. Doe, Kavanaugh agreed with the panel that the government could, under a content-neutral District of Columbia law prohibiting the defacement of public property, prohibit anti-abortion protesters from chalking the sidewalks outside the White House. He wrote separately because he did not “want the fog of First Amendment doctrine to make this case seem harder than it is.” “No one,” Kavanaugh wrote, “has a First Amendment right to deface government property.”

Coverage exceptions – defamation and incitement

First Amendment doctrine recognizes certain narrow coverage exceptions, including for communications about public officials or figures that are made with knowledge of their falsity or reckless disregard for their truth (defamation) and speech that incites others to unlawful action (incitement). Kavanaugh has written two defamation opinions and one opinion addressing speech that incites unlawful action.

In Kahl v. Bureau of National Affairs, Inc.,Kavanaugh wrote the court’s opinion dismissing a prisoner’s defamation case against the Bureau of National Affairs, which was based on BNA’s reporting on a legal filing in the prisoner’s case. Applying the standards announced in New York Times v. Sullivan, Kavanaugh concluded that the prisoner, who had been convicted of murdering two U.S. marshals, was a “limited purpose public figure.” Thus, he had to demonstrate that BNA had acted with “actual malice.” Kavanaugh concluded that merely alleging falsity was not enough to satisfy this burden. He recognized that “[c]ostly and time-consuming defamation litigation” can chill freedom of speech and press. And he wrote: “To preserve First Amendment freedoms and give reporters, commentators, bloggers, and tweeters (among others) the breathing room they need to pursue the truth, the Supreme Court has directed courts to expeditiously weed out unmeritorious defamation suits.” In dismissing the complaint, Kavanaugh emphasized the First Amendment’s broad protection for the “unfettered interchange” of thoughts and ideas on matters of public concern.

In Abbas v. Foreign Policy Group, LLC, Kavanaugh wrote an opinion holding that questions posed in an article about a foreign leader’s son could not be treated as assertions of fact for purposes of proving defamation. Acknowledging that D.C. law was not clear on whether mere questions can constitute defamatory statements, Kavanaugh resolved the question by looking to the general rule from other jurisdictions. Kavanaugh reasoned:

After all, just imagine the severe infringement on free speech that would ensue in the alternative universe envisioned by Abbas. Is the Mayor a thief? Is the quarterback a cheater? Did the Governor accept bribes? Did the CEO pay her taxes? Did the baseball star take steroids? Questions like that appear all the time in news reports and on blogs, in tweets and on cable shows. And all such questions could be actionable under Abbas’s novel defamation theory.

He concluded that a contrary ruling would “ensnare a substantial amount of speech that is essential to the marketplace of ideas and would dramatically chill the freedom of speech.”

Abbas also addressed the question whether the District of Columbia’s Anti-Strategic Lawsuits Against Public Participation Act applied in federal court. Anti-SLAPP statutes like D.C.’s generally make it easier to dismiss defamation suits at an earlier stage, with the goal of decreasing the chilling effects associated with such litigation. Kavanaugh’s opinion acknowledged the purpose and importance of anti-SLAPP laws to free speech and press rights. His conclusion that the anti-SLAPP law does not apply when a federal court is exercising diversity jurisdiction, which involves a rather tricky federal procedure question, is shared by courts in some other circuits.

Kavanaugh has also authored an opinion applying the First Amendment’s “incitement” standard.In Al Bahlul v. United States, an en banc decision rejecting various constitutional challenges to trial by military commission, Kavanaugh wrote a concurring opinion in which he also addressed Al Bahlul’s claim that he had been prosecuted for political speech. The speech in question consisted of the production and distribution of al Qaeda recruitment videos that encouraged viewers to join al Qaeda and kill Americans. Kavanaugh concluded that the free speech clause does not apply to noncitizens located abroad. Further, even if the free speech clause did apply in these circumstances, he concluded that Al Bahlul’s speech was not covered by the First Amendment because it expressly incited, and was likely to result in, imminent unlawful activity.

Government’s role as employer and speaker

Although the record is thin, Kavanaugh may support existing limits on public employee speech rights. In two cases, he has also taken a relatively broad view of the government’s power when it acts as a speaker rather than as a regulator of speech.

In LeFande v. D.C., Kavanaugh joined an opinion holding that a police reserve officer’s emails to his superiors, in which he cc’d his co-workers, were not protected under the balancing test adopted by the Supreme Court in Pickering v. Board of Education. The district court had held that the emails were government speech and thus not entitled to any First Amendment protection. However, the panel concluded that even if the emails constituted speech by an employee on a matter of public concern, the employer’s interest in promoting office harmony outweighed any interest the employee had in sending them.

In Moore v. Hartman,Kavanaugh disagreed with a panel opinion finding, in a First Amendment retaliation suit, that D.C. law had “clearly established” that an arrest in retaliation for speech is insulated from suit when there is probable cause for the arrest. In a dissenting opinion, Kavanaugh concluded that the law concerning probable cause was not “clearly established” and that defendants were thus entitled to qualified immunity on the First Amendment claim. (The Supreme Court recently ruled that probable cause sometimes, although not always, bars a First Amendment retaliation claim.)

Kavanaugh was also involved in two cases addressing the government speech doctrine. In both cases, he rejected the First Amendment claim.

In DKT International, Inc. v. U.S. Agency for International Development, Kavanaugh joined an opinion holding, in the context of federal grants for HIV/AIDS relief efforts, that the federal government could refuse to fund nongovernmental organizations if they did not certify that they had a policy opposing prostitution and sex trafficking. Under existing U.S. policy, eradicating prostitution and sex trafficking was considered an integral part of the worldwide fight against HIV/AIDS. The D.C. Circuit, applying the principle that when the government communicates it may discriminate based on viewpoint, upheld the funding restriction. (In response to another challenge, the Supreme Court later invalidated the funding restriction, on the ground that it unconstitutionally compelled speech outside the scope of the government funding program.)

In Bryant v. Gates, the D.C. Circuit rejected a challenge to Department of Defense regulations that restricted advertisements in newspapers published under contract with the department and distributed on military bases. The majority resolved the case under public forum doctrine, holding that the newspapers’ advertisement space was a “non-public forum” and that the rules were reasonable and viewpoint-neutral. In a concurring opinion, Kavanaugh wrote that there was “a far easier way to analyze this kind of case under the Supreme Court’s precedents.” He concluded that the content in military-run newspapers and advertisement spaces was the government’s own speech. As he explained: “The military may, for example, permit advertisements that say ‘Support the Troops’ but decline advertisements that say ‘Oppose the Troops.’ If forum analysis applied, however, the military could not maintain that kind of sensible editorial policy.”

Petition rights

The First Amendment’s petition clause, which protects the right “to petition the Government for a redress of grievances,” does not receive much judicial attention. Kavanaugh has written two opinions addressing petition rights, recognizing such rights in one case and declining to do so in the other.

Kavanaugh wrote the opinion in Venetian Casino Resort, L.L.C. v. National Labor Relations Board, which held that the Venetian did not violate the National Labor Relations Act when it called on police officers to arrest employees demonstrating on a walkway in front of its property and to block them from the walkway. The opinion applied the Noerr–Pennington doctrine, under which direct petitions to government are shielded from liability under the NLRA on the ground that they are protected by the First Amendment. Kavanaugh wrote that “the act of summoning the police to enforce state trespass law is a direct petition to government subject to protection under the Noerr-Penningtondoctrine.” However, the doctrine does not apply if the petition is a “sham.” Kavanaugh remanded the case to the NLRB to determine whether the Venetian’s petition was genuine.

In We The People Foundation, Inc. v. United States, Kavanaugh wrote an opinion rejecting a petition clause claim. Various individuals who had petitioned Congress and the executive branch with respect to a variety of issues (war, privacy and taxes) alleged that the petition clause entitled them to a response from the federal government. Relying on Supreme Court precedents rejecting similar claims filed against state officials, the D.C. Circuit held that the petition clause does not entitle petitioners to any response from federal officials.

Commercial speech and compelled speech

Kavanaugh has written one significant opinion in a case involving commercial speech. The opinion is noteworthy for two reasons. First, it addressed the scope of protection for commercial speech. Second, it involved a mandatory disclosure, thus implicating rights against compelled speech.

In American Meat Institute v. U.S. Department of Agriculture, a divided panel of the en banc D.C. Circuit upheld a federal regulation that required the meat industry to include “country of origin” information on meat packaging. In Zauderer v. Office of Disciplinarian Counsel of the Ohio Supreme Court, the Supreme Court held that “the States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading.” In American Meat Institute, a group of livestock producers, feedlot operators and meat packers challenged the “country of origin” regulation on First Amendment grounds, arguing that it failed under Zauderer because it amounted to compelled speech that did not advance a permissible regulatory goal. The majority concluded that the mandatory disclosure was justified because the information was valuable to consumers in terms of making informed purchases and relevant to health concerns relating to possible food-borne illnesses.

In a concurring opinion, Kavanaugh concluded that the First Amendment did not bar the “longstanding and commonplace country-of-origin labeling requirements.” He found that the government could not “advance a traditional anti-deception, health, or safety interest in this case.” Rather, it asserted a general interest in “providing consumers with information.”Rejecting that argument, Kavanaugh concurred in the judgment on the ground that country-of-origin labeling was justified “by the Government’s historically rooted interest in supporting American manufacturers, farmers, and ranchers as they compete with foreign manufacturers, farmers,and ranchers.” Thus, he upheld the regulation, but on a different and somewhat narrower ground than the majority.

Some have suggested that Kavanaugh’s concurrence indicates a lack of support for commercial speech rights. However, in addition to emphasizing that “the First Amendment protects commercial speech,” Kavanaugh interpreted Zauderer as denying government “a free pass to spread their preferred messages on the backs of others” owing solely to its interest in providing consumers with information. He concluded that “history and tradition provide no support for that kind of free-wheeling government power to mandate compelled commercial disclosures.” Kavanaugh also explained that Zauderer is “simply an application of Central Hudson Gas & Electric v. Public Svc. Comm. [which provides the general standard for commercial speech regulations], not a different test altogether.” Kavanaugh described the Zauderer standard as “far more stringent than mere rational basis review.” Indeed, he wrote, “Zauderer tightly limits mandatory disclosures to a very narrow class that meets the various Zauderer requirements.”

Regarding mandatory disclosures and compelled speech more generally, Kavanaugh’s concurrence agreed “that the First Amendment imposes stringent limits on the Government’s authority to either restrict or compel speech by private citizens and organizations.” Moreover, in his telecommunications opinions, which are discussed immediately below, Kavanaugh made clear that he supports broad First Amendment rights against compelled speech and association. Thus, the single instance in which he upheld a mandatory commercial disclosure likely tells us little about how he would decide a case involving, for example, compulsory baking of wedding cakes for same-sex couples. Kavanaugh’s general approach to compulsory disclosure laws suggests that he would view such measures skeptically.

Telecommunications and technology

Kavanaugh has written several opinions concerning the First Amendment rights of internet intermediaries, cable providers and other telecommunications networks. His opinions articulate a broad view of First Amendment editorial and speaker-autonomy rights, including for digital-content providers.

The opinion that has received the most attention is Kavanaugh’s dissent from the denial of en banc review in United States Telecom Association v. Federal Communications Commission.A panel of the D.C. Circuit upheld the FCC’s Open Internet Order, which imposed what is commonly referred to as “net neutrality.” In general terms, net neutrality required that internet service providers treat all internet traffic equally or neutrally. Thus, ISPs like AT&T, Comcast and Verizon were barred from charging more for various activities, such as video streaming, which takes up more bandwidth. Proponents of net neutrality contended that in its absence, the free flow of information on the internet would be adversely affected by a tiered communication system controlled by powerful ISPs. (The FCC reversed its order in December 2017; in January 2018, 21 states filed suit against the FCC challenging the reversal.)

In his dissent from denial of en banc review of the panel opinion, Kavanaugh wrote that the FCC order was not authorized by Congress and undermined the separation of powers. He also argued that even if Congress had authorized net neutrality, “the First Amendment bars the Government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market.” Addressing the application of the First Amendment to ISPs, Kavanaugh wrote: “The First Amendment protects an independent media and an independent communications marketplace against takeover efforts by the Legislative and Executive Branches. The First Amendment operates as a vital guarantee of democratic self-government.” He also invoked the Founding era, during which “the First Amendment protected (among other things) the editorial discretion of the many publishers, newspapers, and pamphleteers who produced and supplied written communications to the citizens of the United States.” Kavanaugh concluded that “those foundational First Amendment principles apply to editors and speakers in the modern communications marketplace in much the same way that the principles apply to the newspapers, magazines, pamphleteers, publishers, bookstores, and newsstands traditionally protected by the First Amendment.” If the rule were otherwise, he wrote, the government could “regulate the editorial decisions of Facebook and Google, of MSNBC and Fox, of NYTimes.com and WSJ.com, of YouTube and Twitter.”

In other cases, Kavanaugh has expressed similar views about the First Amendment editorial rights of content providers and telecommunications networks. Thus, in Comcast Cable Communications, LLC v. FCC, he wrote a concurring opinion stating that absent a sufficient showing of market power, the FCC’s interpretation of a regulation that required Comcast and other programming distributors to carry certain content violated the First Amendment. Similarly, in Cablevision Systems Corp. v. FCC, Kavanaugh filed a dissent from the court’s decision upholding an FCC regulation prohibiting exclusive contracts between cable companies and affiliated networks. In both cases, he emphasized that the FCC could not interfere with the content provider’s editorial discretion by compelling it to carry, or prohibiting it from carrying, certain content. The opinions are based on what Kavanaugh referred to as a “straightforward and expansive” First Amendment that applies with full force to “modern means of communication” just as it did to early publishers and pamphleteers.

Some commentators have suggested that these opinions indicate that Kavanaugh may interpret data privacy and other laws in ways that could “alter the digital landscape.” The record, including his opinions in the campaign finance and telecommunications areas, strongly suggests that Kavanaugh will broadly protect the rights of corporate speakers and apply the free speech clause in a variety of regulatory areas, perhaps including data privacy.

Posted in Judge Kavanaugh's jurisprudence, Nomination of Brett Kavanaugh to the Supreme Court, Featured

Recommended Citation: Timothy Zick, Judge Kavanaugh and freedom of expression,SCOTUSblog (Aug. 7, 2018, 3:49 PM), https://www.scotusblog.com/2018/08/judge-kavanaugh-and-freedom-of-expression/

https://www.alternet.org/2019/06/everybody-hates-john-roberts/

no lnx

Everybody hates John Roberts

THE WASHINGTON MONTHLY

30 JUN 2019 AT 14:08 ET

If a successful compromise is one that leaves both sides disappointed, then John Roberts had a banner day on Thursday. Liberals inclined to view the Supreme Court chief justice as a loyal Republican operative saw bitter confirmation in his decision that federal courts have no power to stop partisan gerrymanders. But conservative die-hards who questioned Roberts’s commitment to the movement will shake their heads at his decision to block the Trump administration, at least temporarily, from adding a citizenship question to the 2020 census. That’s not to say that the partisan impact of the two rulings will be symmetrical. Roberts, who once famously insisted that his job is “to call balls and strikes,” tends to afford Republican pitchers a wider strike zone. But the pair of rulings gave each side plenty to fume about.

If you don’t believe me, just read Justice Clarence Thomas’s dissent in Department of Commerce v. New York, the census case. The question was whether the U.S. Census Bureau, which is part of the Commerce Department, would be allowed to add a question to the 2020 census asking whether respondents are U.S. citizens or not. While Roberts agreed with the other four conservatives that the answer ordinarily would be yes, he joined the liberal bloc in ruling that Commerce Secretary Wilbur Ross’s stated rationale for adding the question—that it was necessary to allow the Department of Justice to protect minority voters—was transparently false. The real reason was that the Census Bureau’s own research showed that a citizenship question would suppress response rates among undocumented immigrants, thereby leading to an undercount in Democratic-leaning areas and further enhancing Republican power after the 2021 round of redistricting.

The proof of this was overwhelming. As Roberts put it in an understated summary:

That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.

In short,Roberts concluded, the voting-rights rationale was a pretext. Judges should give government officials the benefit of the doubt, he wrote, but “[a]ccepting contrived reasons would defeat the purpose of” judicial review.

You might think that would be an uncontroversial notion. But all four of Roberts’s conservative colleagues would have allowed the government to go forward with the question. Thomas’s dissent, which was joined by Trump appointees Neil Gorsuch and Brett Kavanaugh, was dripping in indignant contempt, all but accusing the majority of discriminating against the Trump administration: “The Court therefore upholds the decision of the District Court—which, in turn, was transparently based on the application of an administration-specific standard.” Later, in a passage that, other than syntactically, would not seem out of place in a Sean Hannity monologue, Thomas added: “I do not deny that a judge predisposed to distrust the Secretary or the administration could arrange those facts on a corkboard and—with a jar of pins and a spool of string—create an eye-catching conspiracy web.”

From the pitch of his outrage, you could almost forget that Thomas and the conservatives claimed victory in the day’s more consequential ruling, on partisan gerrymandering.

There’s nothing inherently conservative about gerrymandering—indeed, Thursday’s case, Rucho v. Common Cause, involved both a Republican gerrymander in North Carolina and a Democratic one in Maryland—but the decision is a boon to Republicans for the simple reason that they currently benefit far more from it. There are, in other words, more North Carolinas than Marylands. When Republicans swept into power in statehouses around the country in 2010, just in time for redistricting, they were armed both with both sophisticated new technology and an unprecedently rigorous plan for deploying it. The result is that in many states, Democrats are effectively locked out of taking back the legislature. In Wisconsin, for example, Democrats won 53 percent of the popular vote last year—and only 36 percent of legislative seats.

In his majority opinion in Rucho, Roberts didn’t deny that partisan gerrymandering is bad for democracy. Rather, he argued, there’s simply no manageable way for federal courts to police it. Since districting decisions made by elected officials will inevitably take political considerations into account, everyone knows some element of partisanship must be allowed. Therefore, Roberts reasoned, striking down a partisan gerrymander would require the Court to answer an unanswerable question: “How much is too much?” As distasteful as gerrymandering is, he concluded, it’s up to the political process (and perhaps state courts), not federal judges, to address the problem.

This line of reasoning drove liberals up the wall. The problem with egregious partisan gerrymandering is precisely that it makes it all but impossible for the disadvantaged side to win back power. To say that it’s up to the North Carolina legislature to undo its gerrymander is to say that the state’s Republicans should voluntarily cede their advantage. The practical upshot of Thursday’s ruling will be to help Republicans (and Democrats, in states like Maryland) hang onto power without actually winning over a majority of voters.

In her dissent, Justice Elena Kagan excoriated the conservative majority for failing to recognize that lower federal courts have already been converging on a manageable test for identifying excessive partisan gerrymanders, one that looks at whether the purpose and effect of districting is to “substantially” entrench the dominant party in power by diluting the other party’s votes. “But in throwing up its hands,” she wrote, “the majority misses something under its nose: What it says can’t be done has been done.” Liberal commentators have gone farther. Prominent election law scholar Rick Hasen wrote in the New York Times that “the opinion written by Chief Justice John Roberts is disingenuous” because the Supreme Court regularly imposes vague-sounding standards like “reasonable” or “substantial” to draw boundaries in other areas of the law.

But while Roberts’s liberal critics have landed some punches, it’s a stretch to treat the gerrymandering ruling as a clear case of bad-faith partisan judging. Drawing the constitutional line between “partisan” and “too partisan” is no easy task. Consider Kagan’s response to Roberts’s question, “How much is too much?” Pointing to the truly extreme level of partisan precision in the North Carolina case, she treated the concern as trivial. “How about the following for a first-cut answer,” she wrote: “This much is too much.” It’s a cute line, but it’s not really an adequate answer. If the Court is to weigh in on these cases, it’s fair to expect it to establish a rule that goes beyond ad hoc judgments.

We may ultimately get a clearer answer to the question of whether Roberts’s ruling was really disingenuous. To show that the democratic process is up to the challenge of curtailing gerrymandering, he cites a litany of reforms, including nonpartisan redistricting commissions, which voters in Michigan and Colorado approved last fall. As it happens, the Court affirmed the constitutionality of such commissions in 2015, in a 5-4 decision with the now-retired Anthony Kennedy joining the liberals. Do you know who wrote the dissent? John Roberts. With Kennedy now replaced by Kavanaugh, it’s a safe bet that there are enough votes to overturn that precedent. But if Roberts chooses that path, it will be yet another blow to the flagging legitimacy of the institution he leads. And that much might really be too much.

---

Note these 2 cases undermine 2020 election, demo political partisan hacks

also scotus on gerrymander

https://www.alternet.org/2019/06/supreme-court-sends-census-citizenship-case-back-to-lower-court-after-bombshell-evidence-reveals-gops-true-motives/

no lnx

Supreme Court sends census citizenship case back to lower court after bombshell evidence reveals GOP’s true motives

STEPHEN WOLF / DAILY KOS

27 JUN 2019 AT 15:30 ET

In a surprise decision that will help preserve fair political representation, the Supreme Court temporarily blocked the Trump administration from adding a question to the 2020 census asking U.S. residents about their citizenship status, instead sending the case back to lower court for it to explore explosive new evidence behind the GOP’s motives for including the question.

The addition of this citizenship question would have likely had a chilling effect, intimidating millions of people in immigrant communities into not participating in the census. That in turn would haveturbocharged a new wave of hyperpartisan Republican gerrymandering nationwide, since census data is the bedrock of redistricting.

This impact was in fact the entire rationale behind this question: In a recent bombshell report, based on newly unearthed documents from a deceased GOP political consultant, Thomas Hofeller, Republicans admitted that rigging the census would eviscerate the political power of Democrats and voters of color.

The Constitution mandates that every person in the U.S. be counted in the decennial census, without regard to their legal status. A question on citizenship hasn’t been included in the census since 1950, and even when it has appeared, it has never been asked of every single participant, as the Trump administration intended it to be in 2020. Furthermore, multiple lower courts had ruled that Trump’s attempt to add the question violated both federal law and the Constitution.

Those courts uniformly dismissed the Trump administration’s claim that the Justice Department needed data on citizenship to enforce the Voting Rights Act as a bogus pretext that masked their true motives. Hofeller’s document trove revealed the GOP’s racist and partisan intent: allowing mapmakers to use citizenship statistics result in “a disadvantage to the Democrats” and to be “advantageous to Republicans and non-Hispanic whites.”

Although the Census Bureau had planned to print millions of census forms in July, plaintiffs argued that it could delay printing until October to give the courts time to resolve the case. Now, the case will go back to the federal district court in New York that originally heard the matter. That will allow the judge to conduct an in-depth review of the new evidence and craft a ruling that addresses the Trump administration’s racial and partisan animus. In the likely event that the lower court once again blocks the question, the Supreme Court may let such a ruling stand following its latest decision.

Given the blatant display of partisan and racial bigotry behind the GOP’s plans, this ruling averted a major blow to democracy that would have rivaled the harms of both 2000’s Bush v. Gore decision and the 2013 ruling that crippled the Voting Rights Act. Although the Supreme Court’s Republican majority has advanced an increasingly partisan agenda that undermines the rule of law, Trump’s malicious effort to weaponize the census simply proved to be too extreme for the court to accept.

new gerrymander

‘A requiem for American democracy’: 5-4 Supreme Court vote rules partisan gerrymandering is ‘beyond the reach of the federal courts’

Elizabeth Preza June 27, 2019

The Supreme Court on Thursday in a 5-4 ideological split rejected limits to partisan gerrymandering, quashing an effort by advocates of political reform to rein in manipulative electoral district boundaries

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new

CREDO are organizing a petition demanding that Congress investigate the credible accusations of perjury and sexual assault that have been made against him, and we’re asking our grassroots network to join their call!

There’s just too much to let Kavanaugh get away with:

His confirmation process was a sham, with an enormous portion of his records from the Bush White House shielded from congressional scrutiny.
Documents that were shared suggest he could have committed perjurymultiple times.
The White House controlled the FBI investigation into sexual assault accusations.
Up to $200,000 in debt he previously reported disappeared before his confirmation.

And despite promises made prior to the midterm elections to investigate Kavanaugh, Congressman Jerry Nadler (now Chairman of the House Judiciary Committee) hasn’t followed through. So by joining CREDO’s petition, we’re aiming to build the public pressure needed for congressional leaders to finally make good on their promise!

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aha-ish a variant on zero sum?

https://www.alternet.org/2019/06/legal-scholar-tracks-down-the-bizarre-origins-of-the-right-wing-phrase-justice-kavanaugh-used-in-a-new-opinion/

no lnx

Justice Brett Kavanaugh was appointed the Supreme Court by President Donald Trump for one clear purpose: to fortify the majority of conservative justices than can protect the right-wing agenda through the judicial branch.

And while there’s plenty of evidence to suggest that Kavanaugh will be a dutiful player in this role, there always remains a possibility that a justice will go rogue once appointed and fail to follow the wishes of the party behind his or her nomination. But in a new majority opinion announced on Monday, joined by the other four Republican appointees on the court, Kavanaugh sent a clear signal that he’s a party man to his core.

The decision came in the case of Manhattan Community Access Corp. v. Halleck, where the court was faced with the question of whether a public access television channel is a state actor and thus bound by the First Amendment. The five conservative justices said the non-profit organization functions as a private actor in its role and is therefore not hampered by the Constitution, while the four liberal justices disagreed.

But legal scholar Michael Dorf of Cornell University, who blogs at Dorf on Law, pointed to one peculiar bit of phrasing Kavanaugh used in authoring the majority opinion that is worth examining:

It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case. [Emphasis mine]

On Twitter, Dorf noted out that the phrase in bold is not obvious, and its origins were left unclear.

“I never heard anyone say this, and the opinion provides no citation, so I Googled it and found the Twitter feed of the Ayn Randian Atlas Society,” he wrote. “But what is the origin of this saying?”

He continued: “It appears to be an aphorism coined by a libertarian talk show host named Dennis Prager (who originally referred to ‘citizen’ rather than ‘individual’). Various libertarian candidates for office have used the phrase, with or w/o attribution.”

Kavanaugh’s choice to use this phrase with no citation or discussion of its origins suggests two equally troubling possibilities: He was trying to conceal the blatantly right-wing nature of its origins, or he is so steeped in right-wing ideology that he assumes conservative truisms are essentially uncontroversial.

But as Dorf argued, there’s nothing obviously true about this claim; in fact, a little reflection shows that at least a simplistic understanding of the assertion is plainly false.

“The claim is false insofar as it asserts a linear relationship between the size of government and the ability of individuals to flourish. Ask Hobbes how well individuals do when one shrinks government down to nothing,” he explained. “The claim conflates government’s size and its reach. Govt could be large in terms of taxes or spending/GDP ratio but small in its intrusion on people’s lives. Welfare states need not be and generally have not been totalitarian states.”

The incident demonstrates a larger issue that deeply concerns me about the court. While discussion about the ideological divides on the court is common, I think it’s often underestimated the significant role the justices’ information diets — where and how they consume news, in particular — affects their world views and the rulings. To put it bluntly, I fear that the conservative justices, in addition to having ideological biases just like anyone else, consume Fox News disinformation and related propaganda regularly that gives them a distorted view of the world.This one opinion shows how unsophisticated slogans can fester in the mind and potentially influence major decisions. If the right-leaning justices rely on the cesspool that is conservative media to make their judgments about the world, especially at a time when conservative media is increasingly disconnected from reality, we should be deeply concerned about where the court will take the country.

djt sez more combative and did, vast conspiracy, big money, hit, clinton revenge...

violence?!

https://www.alternet.org/2019/05/mysterious-dark-money-group-got-22-million-to-get-trump-scotus-pick-kavanaugh-confirmed/

A just-published report by the nonpartisan Center for Responsive Politics’ award-winning OpenSecrets.org reveals the Judicial Crisis Network, a conservative secretive dark money group received $22 million from anonymous donors in the year leading up to the Tump administration and conservatives’ push to place Brett Kavanaugh on the U.S. Supreme Court.

$17 million of that $22 million came from one anonymous donor.

“The Judicial Crisis Network (JCN), a Washington, D.C.-based nonprofit, pledged to spend as much as $10 million to ensure Kavanaugh’s confirmation — the same amount that it spent to help confirm Justice Neil Gorsuch in 2017,” Anna Massoglia and Andrew Perez at OpenSecrets reveal in their report Friday.

“JCN has close ties to Trump’s judicial adviser Leonard Leo, a longtime executive at the Federalist Society, the influential conservative and libertarian lawyers network based in Washington, D.C.”

If you’re not familiar with the Judicial Crisis Network, here’s one of their ads you may have seen on TV in the run up to the Kavanaugh confirmation vote:

[vid]

Here’s where it gets even more disturbing.

“The bulk of JCN’s funding has typically come from the Wellspring Committee, another secretive nonprofit run by operatives who wear multiple hats in a larger network of opaque groups.”

That “larger network of opaque groups” links to another OpenSecrets report: “New clues link $1 million Trump inauguration mystery money to secretive ‘dark money’ network.”

OpenSecrets adds, “Wellspring has continued to send massive annual endowments to JCN since the group launched in 2005. JCN, in turn, has continued to pour tens of millions of dollars into every subsequent Supreme Court nomination fight and working to reshape the judiciary. Wellspring reported donating almost $15 million to JCN in 2017, on top of $23.5 million in 2016. Neither organization discloses the sources of its funds.”

https://www.alternet.org/2019/05/fox-news-analyst-andrew-napolitano-stunned-by-kavanaughs-latest-ruling-i-did-not-see-this-coming/

Fox News senior judicial analyst Andrew Napolitano on Monday said he was surprised to see Supreme Court Justice Brett Kavanaugh siding with the court’s liberal members in a recent 5-4 decision.

“One would think it is in the weeds, but it’s not. We all have apps on our phones — some for free and some you buy from Apple. So people sued Apple saying why do I pay $99 for an app worth $20 or $30. And the courts threw the case out, saying you can’t sue Apple in a class-action. You have to sue the originator of the app,” Napolitano explained to Fox News host Bill Hemmer.

“This morning, the Supreme Court of the United States radically expanded plaintiff’s rights to commence class-actions against deep pocketed corporations. And what alliance was it? It was the four liberal members of the court and its newest member Justice Brett Kavanaugh, writing a decision that is a plaintiff’s lawyers delight.”

“I did not see this coming,” Napolitano continued. “All the indications about Brett Kavanaugh were that he was a monolithic conservative that wouldn’t even listen to the other side and during the course of the unfortunate hearings that he had, when he was allowed to talk about his political philosophy, he said I am not a monolithic anything, I listen to the facts and I apply the law. Today he and the four liberal members of the court radically expanded the rights of plaintiffs to bring class-actions.”

Watch the video below:

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https://insideclimatenews.org/news/26102018/children-climate-change-lawsuit-trial-delayed-supreme-court-kavanaugh

A federal judge in Oregon has delayed a lawsuit brought by 21 children and young adults to force government action on climate change, pending a decision by the Supreme Court on whether to dismiss the case before trial. Opening arguments had been set for Monday.

The government has repeatedly tried to halt the case. Last week, the Supreme Court agreed to a temporary stay while it considers the Justice Department's argument that a trial would cause the government "irreparable harm." The decision to delay the case at this early stage was highly unusual.

The plaintiffs and their lawyers say the government is trying to deprive them of their right to a fair hearing.

"Since the early days of the Republic, our judiciary has grown to be the last line of defense against governance that threatens the public good and destroys the lives of our people," Julia Olson, co-counsel for the plaintiffs, said in a statement. "These young people deserve that chance to present their case against those who govern and let the light fall where it may."

If successful, the lawsuit could result in a court order that the federal government develop and implement a plan to cut greenhouse gas emissions. If the plaintiffs ultimately lose, a trial would still present a public forum on climate change and the grave risks it poses to the nation. A trial could also force the Trump administration into the embarrassing position of publicly admitting the facts about climate change while arguing that it need not address the problem.

The government's lawyers haven't contested the children's central claims—that climate change is real and is causing them harm. Instead, the lawyers have argued that the federal government is not responsible and that the court has no place ordering political branches what to do.

The Supreme Court is now considering those questions. In July, the court denied an earlier attempt by government lawyers to halt the case. It's unclear why the court changed its position now.

David Bookbinder, chief counsel for the libertarian Niskanen Center, which filed a brief supporting the youths' case, said the only thing that has changed is the replacement of Justice Anthony Kennedy, who retired, with Justice Brett Kavanaugh, President Donald Trump's controversial pick whose record as a federal judge includes ruling against some environmental regulations.

"They're willing to step in and look at this earlier than the court normally would because it's a climate case," he said. One of the few other cases in which justices have issued such a ruling at this stage, he said, was when they halted implementation of President Barack Obama's proposal to limit emissions from the electricity sector. "Climate is just different."

Like Brown v. Board of Education with school integration or Obergefell v. Hodges, which established a right to marriage for same-sex couples, the case is pushing a novel claim for constitutional rights, legal experts say. It will also test core questions about the separations of powers. The plaintiffs argue that, as in Brown, the Constitution's checks and balances require the courts to step in because the political branches are failing citizens, in this case by neglecting to protect them from climate harm. The government has argued that existing laws and environmental regulations take precedence and any action by the court would overstep its authority.

"For three years, my co-plaintiffs and I have been waiting for our voices to be heard in court," Hazel V., a 14-year-old plaintiff in the case, said in a statement. "But the U.S. government is doing everything it can to silence us, all while we watch it continue to make the climate crisis worse.

https://www.alternet.org/taught-rule-scholar-privilege-explains-why-elite-men-brett-kavanaugh-lie-and-cheat-without

consequences

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murkowski

native am key to her write-in win, pressure on brett k

https://www.alternet.org/lisa-murkowskis-facebook-page-flooded-rape-threats-and-accusations-after-no-vote-kavanaugh

https://www.brennancenter.org/analysis/buying-time-supreme-court-advertisements

july 2018

Estimated Total TV Spending:

$9,545,920

Sponsor Estimated Spending Market Breakdown Supports or Opposes Kavanaugh?

Judicial Crisis Network $3,692,730

National Cable: $1,557,000

North Dakota: $739,970

Indiana: $567,210

West Virginia: $458,410

Alabama: $262,460

Washington, D.C.: $107,680

Supports

National Rifle Association/NRA Institute for Legislative Action $1,243,070

National Cable: $144,930

West Virginia: $281,580

Indiana: $198,980

North Dakota: $221,000

Alaska: $90,840

Montana: $305,740

Supports

Demand Justice Initiative $1,127,320

North Dakota: $147,490

West Virginia: $208,850

Indiana: $148,420

Maine: $357,680

Washington, D.C.: $79,480

Alaska: $171,250

Nevada: $12,610

Colorado: $1,540

Opposes

America First Policies, Inc. $1,109,950

Indiana: $477,420

North Dakota: $372,260

West Virginia: $240,730

National Cable: $19,540

Supports

NARAL Pro-Choice America $484,100 Maine: $484,100 Opposes

State Government Leadership Foundation $473,230 Maine: $473,230 Supports

Planned Parenthood Action Fund $404,530

Maine: $246,940

Alaska: $106,080

Washington, D.C.: $51,510

Opposes

One Nation $404,440 Maine: $404,440 Supports

Vote Vets Action Fund $179,510

Maine: $154,010

Alaska: $25,500

Opposes

45Committee $118,490

National Cable: $73,070

Washington, D.C.: $45,420

Supports

The ACLU of Maine $117,880 Maine: $117,880 N/A *

End Citizens United $73,420 National Cable: $73,420 Opposes

Protect Our Care $42,710

Maine: $26,210

Alaska: $16,500

Opposes

The ACLU of Alaska $39,420 Alaska: $39,420

N/A *

Citizens United $27,490 National Cable: $27,490 Supports

Great America PAC/Great America Alliance $5,550 National Cable: $5,550 Supports

American Civil Liberties Union Incorporated $2,080 West Virginia: $2,080 Opposes

---

https://www.politifact.com/truth-o-meter/statements/2018/oct/05/jon-tester/how-much-dark-money-fueling-kavanaugh-confirmation/

How much dark money is fueling the Kavanaugh confirmation fight?

By John Kruzel on Friday, October 5th, 2018 at 3:05 p.m.

Brett Kavanaugh faces Senate confirmation hearing on Sept. 6, 2018.

Sen. Jon Tester, D-Mont., waded into Brett Kavanaugh’s Supreme Court nomination and the millions of dollars that has been spent both for and against the would-be justice.

"Dark money is paying for over 80 percent of (Kavanaugh’s) ads," Tester said in Sept. 29 debate. Tester has said he would vote against Kavanaugh’s confirmation.

Much of that funding has taken the form of "dark money," which refers to political spending by unknown donors for the purpose of influencing public opinion.

We found no one who knows how much money in total has been spent in support of Kavanaugh's nomination. On top of that, the dark money groups aren't required in most cases to report their expenditures.

But many of those organizations like the publicitly and announce that they're spending millions to get Kavanaugh on the court. And those amounts are substantial.

Amount of 'dark money' unknown

Tester’s campaign pointed us to a slew of announcements from eight groups that are funding pro-Kavanaugh ads. Here’s their tally as of Oct. 2:

Funding for pro-Kavanaugh ads

Group

Amount

Judicial Crisis Network

$6 million

Great America Alliance

~ $4.5 million

America First Policies

~ $2 million

NRA-ILA

$1 million

Americans for Prosperity

$1 million

Citizens United

$250,000

45Committee

$650,000

Great America PAC

$448,000

TOTAL: ~ $15.84 million

With the possible exception of Great America PAC, none of these groups needs to disclose their donors or their expenditures.

In addition to data flagged by Tester’s campaign, the Brennan Center for Justice compiled data from the Campaign Media Analysis Group, which tracks television ad buys in national markets. Here's their list of pro-Kavanaugh ads as of Oct. 3:

Kantar Media data (via Brennan Center for Justice; current as of Oct. 3)

Judicial Crisis Network [wtf?]

$3,692,730

NRA-ILA

$1,243,070

America First Policies

$1,109,950

State Government Leadership Foundation

$473,230

One Nation

$404,440

45Committee

$118,490

Citizens United

$27,490

Great America PAC

$5,550

TOTAL: $7.07 million

To be clear, this is an estimate of dark money spending.

However, groups like the National Republican Congressional Committee have also spent on advertisements in support of Kavanaugh.

Such groups do have to disclose their donors and expenditures, but don't need to do so until the next deadline for the Federal Elections Commission. That means no one can put together a total ad budget favoring Kavanaugh.

Without those reports, no one can have a complete accounting of the pro-Kavanaugh ad spending.

Nevertheless, Anna Massoglia, an analyst who tracks the flow of dark money at the Center for Responsive Politics, said this type of spending played a significant role in the Kavanaugh confirmation fight.

" 'Dark money' does make up a substantial portion of spending on the Supreme Court confirmation fight," she said. "But I would be reluctant to classify all spending on Kavanaugh as 'dark money' due to the structure of some of the entities spending on ads."

Our ruling

Tester said, "Dark money is paying for over 80 percent of (Kavanaugh’s) ads."

We did our best to tally up the outside spending on the Kavanaugh confirmation fight. But it’s difficult if not impossible to conclusively say how much money is involved.

Experts said dark money comprises a substantial portion of spending on the Supreme Court confirmation fight. It’s even possible dark money makes up 80 percent or more of the overall share, as Tester said. But we simply can’t be sure. Neither can Tester. And his precise-sounding statement leaves out that important context.

We rate this statement Half True.

Kavanaugh Also Lied About His Environmental Record

The upper chamber of the Senate is set to vote at 10:30 a.m. Eastern Time Friday on whether to end debate on the nomination of Brett Kavanaugh to the Supreme Court. If the motion passes, the Senate could vote whether to confirm him Saturday, CNN reported.

Much of the outcome will depend on whether key swing voters believe Christine Blasey Ford's testimony that Kavanaugh sexually assaulted her at a party when they were both in high school, or if they accept Kavanaugh's denials. But anyone paying attention to how he represented his environmental record would have reason to doubt his credibility, The Intercept reported Thursday,

In his testimony before the Senate Judiciary Committee, Kavanaugh presented himself as pro-environment overall. "In some cases, I've ruled against environmentalists' interests, and in many cases I've ruled for environmentalists' interests," he said.

But an analysis from Earthjustice found that of 26 U.S. Environmental Protection Agency (EPA) cases he had written opinions for, he had ruled for rolling back clean air and water protections 89 percent of the time. The Natural Resources Defense Council came out against a Supreme Court nomination for the second time in 25 years to oppose his advance to the nation's highest court. And an analysis by William Snape, senior counsel at the Center for Biological Diversity, found that in 18 decisions he had made on wildlife cases, including split ones, he had ruled against protecting animals in 96 percent of them.

"He lied. He abjectly lied," Snape told The Intercept of Kavanaugh's testimony. "And if he's going to lie about his record on environmental cases, what's he not going to lie about?"

In one moment in particular during his testimony on Sept. 5, Kavanaugh said he had upheld environmental regulations in several cases, including what he described as "the Natural Resources Defense Council case versus EPA, a ruling for environmentalist groups."

When senior NRDC attorney John Walke, who argued the case in question before Kavanaugh, heard his testimony, he was stunned.

"My immediate reaction was, I thought I had misheard him," Walke told The Intercept. "But as he kept talking, I realized he was talking about my clean air case before him. And then, I honestly could not believe that a federal judge and Supreme Court nominee was misrepresenting my case to U.S. senators in order to bolster his environmental credentials."

Walke wrote a Twitter thread explaining how Kavanaugh had misrepresented his own ruling. Walke pointed out that Kavanaugh had ruled against the NRDC and the Sierra Club, who had also participated in the case, on three out of four counts. He upheld lax pollution limits for soot, lead, arsenic and other metal emissions from cement plants and let the EPA grant polluters a two-year extension to meet the weakened limits. He only ruled in favor of the environmental groups on a procedural question.

"[T]he claim is revealing because my case was one of his own leading examples of pro-environmental rulings: that it is a very poor example ends up reinforcing the relative paucity of his 'rulings in favor of environmentalists' interests," Walke tweeted.

RELATED ARTICLES AROUND THE WEB

Brett Kavanaugh Also Lied About His Rulings on the Environment ›

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How Fox News Is Turning Brett Kavanaugh Into a Symbol of White Grievance

By Amanda Marcotte, Salon

Fox News exploiting Kavanaugh conflict to tell white people they’re the real victims of racist oppression READ MORE»

dirty tricks character asssass

https://www.alternet.org/news-amp-politics/senate-judiciary-committee-julie-swetnick-dennis-ketterer

viral elevator video? jeff flake

https://www.alternet.org/prosecutors-reprehensible-memo-proves-gop-aimed-put-accuser-christine-ford-trial-not-brett-kavanaugh

How Supreme Court Pick Brett Kavanaugh Could Return US Policy to the Era of Robber Barons

https://www.desmogblog.com/2018/09/05/brett-kavanaugh-supreme-court-lochner-era-non-delegation-doctrine

As Judge Brett Kavanaugh’s Supreme Court nomination hearings get under way, understanding his appointment’s potential impacts for corporate regulation and the climate means looking back all the way to 1890.

That was when a nearly 50-year stretch known to legal historians as the “Lochner era” kicked off — a time better known in U.S. history as the age of the robber barons.

The Lochner era gets its name from a 1905 Supreme Court case, Lochner v. New York, which threw out state limits on the number of hours bakers could work in a week. This case's reasoning was later overturned by the U.S. Supreme Court in a 1937 case that rejected a half-century of judicial thinking — doctrines that had led the court to toss out laws governing working conditions, creating food safety standards, and barring child labor.

In 1937, as the Great Depression raged, the Supreme Court faced pressure from President Franklin Delano Roosevelt, frustrated after the Court rejected 11 of 13 early New Deal programs as unconstitutional. The Constitution doesn’t say how many justices are allowed to sit on the Supreme Court — and FDR threatened to add enough justices to change the court’s leanings.

Not long after FDR’s threat, Justices Owen Roberts and Charles Evans Hughes joined majorities that rejected Lochner and found the new National Labor Relations Board constitutional — a move that’s gone down in legal history as the “switch in time that saved nine.” (Nine being the number of justices sitting on the Court.)

During the Lochner era, the Supreme Court followed a “non-delegation doctrine” that required Congress to play an active role in the most minute details of decision-making and policy-setting.

Bringing it back could have huge significance for how the U.S. regulates the environment, food safety, the Internet — and global climate change.

Bringing Lochner Back?

After the Lochner era ended, the Supreme Court allowed Congress, which writes the laws, to delegate the details of rules and regulations to government agencies in the executive branch, which enforces laws. So, for example, the U.S.Environmental Protection Agency (EPA) can decide just how much of a given chemical is safe in a city’s drinking water — and change those rules as new hazards are uncovered — without getting both houses of Congress to sign off on every detail.

Taken to the extreme, uprooting its ability to delegate could require Congress to write or approve every new federal rule and regulation, a herculean task in a country of over 300 million people. The House and Senate’s 535 members would also have to tackle jobs currently performed by dozens of federal agencies like the Food and Drug Administration (FDA), the Federal Communications Commission (FCC), and the Department of Agriculture (USDA).

But there are signs that the Supreme Court might allow the non-delegation doctrine to slip back into the law. In March, the Supreme Court agreed to review a case called Gundy v. United States, limiting its review to non-delegation issues.

And with Justice Kavanaugh shifting the court far to the right, that relatively obscure case might represent a major opportunity for corporations to chip away at the foundations of America’s regulations, including its environmental protections.

“This is a really important sleeper case,” Sean Hecht, a law professor at University of California, Los Angeles told McClatchyin June, before Kavanaugh was nominated on July 9. If the Supreme Court handed down a broad ruling, “[p]arties would feel emboldened to say, you can’t make us do this under the Clean Air Act, or Clean Water Act, or the Endangered Species Act, because Congress wasn’t precise enough in the policy guidance it gave the agency.”

The Gundy case, which involves a dispute over the Sex Offender Registration and Notification Act, directly relates to criminal, not civil law — but legal observers warn that reviving non-delegation in any context could open the doors to hard right-wing judicial activism in much broader contexts.

“There are many on the right that want to upend nearly a century of law,” said Lisa Graves, co-director of the watchdog group Documented and a former Deputy Assistant Attorney General, warning that Kavanaugh’s appointment could kick off a move back towards the Lochner era.

Kochs and Kavanaugh: The Laissez-Faire Link

The Lochner era’s laissez-faire philosophy — a hands-off, “let it be” approach that promotes slashing corporate regulation in the name of limiting government power — is one that many Koch-affiliated organizations and right-wing think tanks share today.

The Federalist Society, whose top donors include David Koch, Charles G. Koch Charitable Foundation, and Koch Industries, according to The Hill, has for years sponsored and hosted debates on reviving the non-delegation doctrine.

Kavanaugh, a long-time Federalist Society member who briefly resigned at the start of his tenure with the G.W. Bush White House Counsel, has remained active at Federalist Society events, though in 2001 he sought to distance himself from the conservative legal group in the press.

“The Federal Society role here is extraordinary,” said Graves. Leonard Leo, who has served for years as the society’s executive vice president, took a leave to advise President Trump on judicial nominees. He helped craft the list used by the Trump administration to decide who to appoint to Supreme Court vacancies.

By speaking at and attending many of the Federalist Society events, Kavanaugh maintained a close connection to the group after he became a judge in D.C.'s U.S. Court of Appeals.

“Judges are like jewels in the crown of the Federalist Society,” Graves said. “In essence, his involvement lends the prestige of his office to that organization.”

When it comes to climate change, Kavanaugh can see that there is a problem. “The earth is warming. Humans are contributing,” he said in 2016. “There is a huge policy imperative. The pope’s involved.”

But in 2016 during oral arguments for a lawsuit against the Clean Power Plan, Kavanaugh’s reasoning against Obama's signature climate change program took on a Lochner-esque tone as he argued that Congress hadn’t clearly delegated authority for Obama’s EPA to regulate carbon emissions under the Clean Air Act. “Global warming is not a blank check, either, for the President,” Kavanaugh said.

During hearings on his appointment to the D.C. Circuit, Kavanaugh called Lochner a “classic example of judges superimposing their personal views on the decision-making process in an improper manner.”

“Yet after ascending to the D.C. Circuit in 2006, Kavanaugh proceeded to follow the example of the Lochner justices,” Slate reported in July.

“Judge Kavanaugh isn't anti-environmental, but he tends to be anti-agency,” Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, told Inside Climate News. “He's often struck down regulation that he didn't think Congress had authorized explicitly enough.”

...

Affluenza and Endless Privilege: Kavanaugh's Social Capital Shielded Him from the Consequences of Bad Behavior — Will That Change?

By Chauncey DeVega, Salon

The saga of Brett Kavanaugh: Class, social capital and endless privilege. READ MORE»

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https://www.alternet.org/evangelist-franklin-graham-says-its-not-relevant-brett-kavanaugh-allegedly-assaulted-someone

https://www.thenation.com/article/the-anti-catholic-playbook/ no lnx

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The Nation

SUPREME COURT The ‘Anti-Catholic’ Playbook

SUPREME COURTRELIGIONBRETT KAVANAUGH

The ‘Anti-Catholic’ Playbook

Does Brett Kavanaugh think abortion should be illegal? A secret network of right-wing activists has spent millions attacking such questions as anti-religious bigotry.

By Sarah PosnerTwitter SEPTEMBER 5, 2018

Confirmation hearings for President Donald Trump’s Supreme Court pick, Brett Kavanaugh, began yesterday with a sustained uproar from Democrats on the Senate Judiciary Committee, who protested Republican efforts to barrel through the process. From the opening moments, Democrats prevailed on committee chair Charles Grassley to postpone the hearings—or entertain their motion to adjourn—because so many of Kavanaugh’s records as associate White House counsel, and all of his records as staff secretary to President George W. Bush, have yet to be released.

This article was reported in partnership with The Investigative Fund at The Nation Institute, where Sarah Posner is a reporting fellow. Additional research by Eli Clifton, Richard Salame and Maia Hibbett.

Committee Republicans, undaunted by this breach of transparency, turned to laying the groundwork for the questioning of Kavanaugh, set to begin this morning, by sowing fear in the Republican base about what Democrats would do if he were not confirmed and they gained more control of the confirmation process after the midterms. Senator Ted Cruz reminded the public of litigation brought by religious groups, including Catholic nuns, against the Obama administration, claiming that employer-provided contraception coverage under the Affordable Care Act violated their religious freedom. Democrats, Cruz charged, “want justices who will further that assault on religious liberty.”

The hearings were fast-tracked by Senate majority leader Mitch McConnell, who is pressing the Senate to confirm Kavanaugh by October 1. The rushed timeline is just the latest maneuver in an aggressive Republican campaign to make sweeping, long-lasting changes to the federal judiciary by packing it with judges hostile to civil rights, reproductive freedom, LGBTQ equality, and church-state separation—while at the same time taking extreme measures to block Democratic nominees. If he is confirmed, the 53-year-old Kavanaugh could tip the balance of the high court for decades, potentially overturning the right to an abortion and dramatically expanding religious exemptions to civil-rights laws and reproductive-health services. He could play a pivotal role in matters that could decide the future of the Trump presidency, from the scope of executive power, which Kavanaugh has argued is vast, to whether or not a sitting president may be subpoenaed or charged with a crime. On a wide range of issues with a profound impact on the daily lives of Americans, a Justice Kavanaugh could prove the decisive vote that cements conservative gains, while wiping out past civil-rights advances.

In the coming days, the 21 senators on the judiciary committee will have an opportunity to ask Kavanaugh tough questions about his legal philosophy on abortion, LGBTQ rights, executive power, and, as the point person on government faith-based initiatives while in the White House counsel’s office of George W. Bush, the proper role of government in the face of faith-based discrimination. Civil-rights advocates say these are precisely the questions that must be posed, given the stakes in choosing a successor to Anthony Kennedy, long the Court’s crucial swing vote on many of these issues. But if a tight-knit network of conservative activists has its way, these senators will instead pull their punches, fearing ferocious, well-funded attacks that deliberately misrepresent such scrutiny as signs of anti-religious bias.

Conservatives, including Kavanaugh himself, have long awaited and carefully prepared for this moment. In the wake of the crushing defeat of conservative legal hero Robert Bork, nominated to the Supreme Court in 1987, and deep disappointment that subsequent, more-moderate Republican appointees Kennedy and David Souter failed to adjudicate as conservative ideologues, right-wing political operatives began building a new strategy for the courts. The Federalist Society continued to build a pipeline of conservative nominees, but strategists bruised from the Bork fight knew they also would need a hard-hitting public-relations campaign to press for their confirmation. They would have to successfully portray rigid ideologues as mainstream, while intimidating lawmakers from grilling them on their more extreme views.

A key tactic would be to shut down questioning on how the nominee would approach cases on abortion or LGBTQ rights by accusing Democratic senators probing these issues of being anti-religious—even anti-Catholic—bigots.

That campaign, honed over more than a decade, has been fueled by tens of millions of dollars in dark-money donations, designed by conservative political consultants and PR firms, disseminated by advocacy groups such as the Catholic League and the Judicial Crisis Network, and validated by GOP senators such as Orrin Hatch, who in past confirmation battles has accused “the left” of “trying to enforce an anti-religious litmus test.” The network also includes Federalist Society executive Leonard Leo, who famously delivered a list of judicial nominees to then-candidate Trump, and has continued to closely advise him on his picks as president.

In his East Room speech accepting Trump’s nomination in July, Kavanaugh spoke often about his faith. He recalled his Jesuit education at Georgetown Preparatory School, in the suburbs of Washington, DC, which taught him the motto “men for others,” a creed Kavanaugh said had inspired a lifelong dedication to public service. He highlighted his standing in “the vibrant Catholic community” in Washington, noting that “the members of that community disagree about many things, but we are united by a commitment to serve.” He hit the same notes yesterday in his opening remarks, referencing his Jesuit education and his volunteer work with Catholic Charities.

In emphasizing his Catholic faith, Kavanaugh had perfectly teed up conservative activists to launch a preemptive attack on anyone who might question his views on abortion, LGBTQ issues, and religious liberty. Within hours of his nomination, one conservative Catholic advocacy organization, Catholic Vote, which claims nearly half a million lay Catholics as members, declared Catholic voters to be “thrilled” with the pick, but warned that they would be vigilant for “any whiff of anti-Catholic bigotry” in the confirmation process. “The experience of past judicial confirmation battles suggest attacks on a nominee’s personal religious views are inevitable,” the group’s president, Brian Burch, said. Op-eds warned of “another explosion of public anti-Catholicism” and predicted the “ugly insinuation” of “the same ‘dual loyalties’ chestnut that bigots have smeared Catholic candidates for public office for going on 200 years in this country.”

Kavanaugh’s nomination was not even a day old, yet Burch was already issuing a warning: “CatholicVote.org is prepared to defend Judge Kavanaugh from any such personal smear campaign by anti-Catholic zealots. We intend to hold every Senator, of both parties, accountable. Any whiff of anti-Catholic bigotry must be met with universal condemnation by every senator. This is especially true for those senators seeking re-election in states won by President Trump.” These senators include North Dakota’s Heidi Heitkamp, Indiana’s Joe Donnelly, and West Virginia’s Joe Manchin—all Democrats in close races. All three are Catholic, and all three have been targeted with ads over the Kavanaugh nomination by Catholic Vote and the Judicial Crisis Network.

It’s unlikely that anyone on the Senate Judiciary Committee missed Burch’s meaning. The network had bludgeoned Dianne Feinstein of California, the committee’s ranking Democrat, for a year over a single sentence she uttered during confirmation hearings last September for Amy Coney Barrett, a Notre Dame Law School professor and conservative Catholic whom Trump had nominated to serve on the US Court of Appeals for the Seventh Circuit. After Barrett insisted that as a judge she would follow Supreme Court precedent, Feinstein asked how Barrett would resolve conflicts between her religious beliefs and the law as a judge. “Dogma and law are two different things,” Feinstein told Barrett. “I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”

The clip caused an immediate uproar among conservatives. Catholic Vote published a piece on its website, “Dear Anti-Catholic Left: Bigotry Lives Loudly Within You.” The Judicial Crisis Network, the dark-money group at the center of the conservative march to stack the courts, leapt to Barrett’s defense with an inflammatory, six-figure ad campaign, titled “Catholics Need Not Apply.” It accused Feinstein and fellow Judiciary Committee Democrat Dick Durbin of Illinois, himself a Catholic, of having “mocked” Barrett’s faith. “Their hypocrisy knows no limits,” the ad charged. “They attack a woman for her Catholic faith, make it a religious test, while they are afraid to call radical Islam, radical Islam.”

The Senate confirmed Barrett, who became an instant celebrity to Trump’s Christian-right base, a standing that soon landed her on Trump’s short list for the Supreme Court. Meanwhile a variation on Feinstein’s phrase—“the dogma lives loudly within me”—became a right-wing meme, appearing on T-shirts and coffee mugs sold on conservative websites, and her quote continues to provide fodder for right-wing pundits.

But while conservative Catholic activists have succeeded in claiming loudly that they have been oppressed, many liberal Catholic leaders argue that their views don’t represent all Catholics. “The religious right, including ultraconservative Catholic special-interest groups, are the squeaky wheel in American politics,” said Jon O’Brien, President of Catholics for Choice. “They get heard and privileged above the majority of Americans of faith or no faith. We are incredibly concerned that Kavanaugh and the special interests he is backed by will radically redefine religious freedom in America to mean religious privilege for a few at the expense of everyone else, including women and LGBT individuals.”

Indeed, yesterday, as Kavanaugh’s hearings got underway, 1,550 Catholic nuns, priests, deacons, and other leaders wrote to the Senate raising concerns about Kavanaugh’s views on health care, immigration, workers’ rights, voting rights, and the death penalty. “As Catholics,” they wrote, “we believe that any government official—including a Supreme Court Justice—must be concerned with the needs of people who are marginalized, not just the rich and powerful or a member of one’s own political party.”

Kavanaugh, it turns out, is deeply familiar with this playbook built around allegations of bias, as it dates back to his days as a top adviser in the George W. Bush White House during the religion wars over Bush’s judicial nominees, some of whom had out-of-the-mainstream views on abortion, gender, and LGBTQ rights.

From 2001 through the middle of 2003, Kavanaugh served as associate White House counsel, helping Bush shepherd his judicial nominations through the Senate. In mid-2003, Bush named Kavanaugh his special adviser and staff secretary; shortly afterward, he nominated Kavanaugh to be a judge on the powerful US Court of Appeals for the District of Columbia Circuit. Throughout this period, Bush’s judicial nominees—many of whom, like Trump’s nominees, had been cultivated and vetted by the Federalist Society—provoked pitched confrontations in a narrowly divided Senate.

In 2003, while Kavanaugh was still in the White House counsel’s office, conservatives accused Democrats of anti-Catholic bias during confirmation hearings for James Leon Holmes, whom Bush had nominated to be a federal trial judge in Arkansas. Holmes had a history of misogynist writing in which he had argued, with his wife, that “the woman is to place herself under the authority of the man” and insisted that an abortion ban would not violate the rights of women who had been sexually assaulted. “Concern for rape victims is a red herring,” he wrote in a letter to a local newspaper, “because conceptions from rape occur with approximately the same frequency as snowfall in Miami.”

The “controversy around Leon Holmes,” according to an account by conservative Catholic political operative Deal Hudson, provided a “perfect opening” for Republicans to accuse Democrats of being anti-Catholic. According to documents related to Kavanaugh’s White House tenure released by the George W. Bush Presidential Library, Manuel Miranda, at the time counsel to Senate majority leader Bill Frist, circulated an e-mail blast to White House staff, including Kavanaugh, from the arch-conservative Catholic League. “catholicism on trial: religious test applied to judicial nominee,” it read, going on to describe Holmes as “a man of deep religious conviction” and accuse Democrats of having “unfairly tagged him a misogynist, misunderstanding what the pope, the U.S. bishops and Holmes have said regarding this matter.”

“It does not get better than this,” Miranda enthused in his cover note. Miranda later left his post over a scandal in which he was implicated in secretly accessing and leaking Democratic computer files about judicial nominations. Holmes was confirmed.

The religion wars only intensified when Bush nominated William Pryor to serve on the US Court of Appeals for the 11th Circuit. Because he was up for an appellate seat, Pryor generated more adamant Democratic opposition than had Holmes. Senators probed his hard-line beliefs on abortion, church-state separation, and LGBTQ rights, including questioning him about his rescheduling of a family vacation to Disney World because it coincided with “Gay Day,”and an amicus brief he authored as Alabama attorney general in the landmark Supreme Court case Lawrence v. Texas, in which he argued that gay sex should remain criminalized because the Court had “never recognized a fundamental right to engage in sexual activity outside of monogamous heterosexual marriage, let alone to engage in homosexual sodomy.” Pryor supporters, again, portrayed legitimate questions about a nominee’s position on abortion—a constitutional right that enjoys majority support among not only Americans as a whole but also among Catholics—as a de facto litmus test against Catholics.

“Their intention is smearing senators as anti-religious for asking questions,” said Peter Montgomery, senior fellow at People for the American Way, which has been in the thick of judicial nominations for decades. “In doing that they’re hoping to intimidate the senator somehow. They raise these questions when senators are asking the nominees about important issues like Roe v. Wade.”

Throughout this entire period, Kavanaugh was specifically enlisted by the Bush White House to engage the Catholic community, including about judges. He was asked, along with Karl Rove, to address supporters of the Catholic magazine Crisis. He also spoke about judicial nominations to a Pro-Life Pilgrimage from Legatus, a conservative Catholic network created by Domino’s Pizza founder Thomas Monaghan, for Catholic business leaders who have “committed themselves to study, live and spread the Catholic faith in their business and personal lives.” And he volunteered to be the office’s specialist on faith-based initiatives, “given my general interest and my previous religious liberty work in my pre-WH days.” Kavanaugh had served on the Religious Liberty Practice Group at the Federalist Society; in private practice he authored an amicus brief in a school-prayer case, arguing that student-delivered prayers at football games were constitutional (the Supreme Court held that they were not).

It was during the Pryor nomination fight that conservative advocacy groups first aggressively advanced the claim that Catholics were being excluded from the bench by the left. The Committee for Justice, led by former George H.W. Bush White House Counsel C. Boyden Gray, and the Ave Maria List, a political-action committee funded by Monaghan, ran newspaper ads in support of Pryor that targeted moderate and swing-state Democratic senators. The ads featured a picture of a closed courtroom door with a sign over it reading, “Catholics Need Not Apply”—the first of the phrase’s many appearances in confirmation campaigns.

Senate Republicans helped press the charge that Democrats were anti-religion. Hatch, then the chair of the Senate Judiciary Committee, told reporters, “It appears that nominees who openly adhere to Catholic and Baptist doctrines, as a matter of personal faith, are unqualified for the federal bench in the eyes of the liberal Washington interest groups. Period.”

But the Committee for Justice ads drew condemnation from other quarters, including from the Anti-Defamation League, which protested that they were “misleading and inflammatory.” A Washington Post editorial described them as “beyond the pale.” Senate Democrats mounted a filibuster, consigning Pryor to a recess appointment, but he was eventually confirmed in 2005 in a bipartisan deal.

The political battle, however, turned out to be far more damaging to the senators who had opposed Pryor’s confirmation. As the 2004 election season got underway, it became clear that an attack machine sounding the alarm about anti-Catholic bias was perfectly comfortable with harsh assaults on Catholic Democrats. Then–Senate minority leader Tom Daschle of South Dakota and Patrick Leahy of Vermont, both Catholics themselves, had denounced the Committee for Justice ads on the Senate floor. Daschle, declaring himself “proud of my Catholic faith,” said, “I know about the bias against immigrants and against Catholics. That was real discrimination. What is being spread this week is a falsehood uttered for partisan political purposes.”

Despite his public declaration of pride in his Catholic faith, Daschle would become a target of conservatives—including conservative Catholics—who sought to oust him from the Senate in order to pave a clear path for confirmation of Bush’s judicial picks. The 2004 elections, with John Kerry, another liberal Catholic at the top of the presidential ticket, featured brutal attacks on both men’s faith.

The Republican National Committee attacked Kerry’s Catholicism, launching a website, KerryWrongforCatholics.com, critical of his positions on abortion, same-sex marriage, and judicial nominations, noting that as senator he had pledged to “filibuster any Supreme Court nominee who would turn back the clock on the right to choose, on civil rights and individual liberties, on the laws protecting workers and the environment.” Kerry was also being Swift Boated, a campaign conceived in part by a PR firm, Creative Response Concepts, that would go on to become a player in the Catholic judicial-nominations network. The Committee for Justice launched a website and ad campaign called “Kerry’s Scary” to attack his views on abortion, same-sex marriage and the pope, as well as his judicial philosophy, calling the latter issue urgent because “Court watchers believe as many as four Justices might retire in the next four years.”

Conservatives also raised questions about Daschle’s Catholicism during his 2004 reelection bid, attacking him in ads over his stance on the judiciary, abortion, and LGBTQ rights. The stakes were high for those who dreamed of a conservative takeover of the courts: If Democrats reversed Republicans’ razor-thin margin in the Senate, they would control the chamber, giving them the ability to block Bush’s nominees, including for anticipated Supreme Court vacancies, or push through those nominated by a potential president Kerry.

Even before the campaign got underway, conservative magazines spread stories that Daschle’s bishop was denying him communion because he was divorced. Then the ads started. The Ave Maria List PAC spent $100,000 running ads accusing Daschle of misinforming South Dakota voters that he was against abortion. One ad said Daschle had once called abortion “an abhorrent practice,” but had later supported pro-choice groups as senator. “Tom Daschle tries to claim he’s pro-life even though his voting record and actions in Washington prove he’s not,” the ad charged. “Tom Daschle has changed and it’s time for South Dakota voters to make a change of their own.”

Another anti-Daschle ad campaign, titled “You’re Fired”—modeled on Trump’s reality-television show The Apprentice—was produced by the You’re Fired PAC and funded by Robin P. Arkley II, a California real-estate magnate. Arkley donated over half a million dollars to the effort.

“The people of South Dakota want to protect traditional marriage,” an affiliated website declared. “You’re Fired Inc. believes the Federal Marriage Amendment is the only way to prevent liberal, activist judges from imposing same sex marriage as they have in Massachusetts—on the rest of American society.” The site depicted a boardroom meeting, during which an executive concluded, “We have one too many Democrats around here and that’s not a good thing,” punctuating his statement with the trademark “You’re fired.” Another Arkley ad charged that Daschle “refused to protect marriage” and “would let liberal, activist judges redefine it.”

Daschle lost his reelection bid, the Republicans retained control of the Senate, and Bush beat Kerry, winning reelection to a second term during which he put John Roberts and Samuel Alito on the Supreme Court.

With the White House and Senate in Republican hands, and with the GOP riding high on passing same-sex marriage bans at the ballot box in 11 states, conservative activists set to work on getting Bush’s conservative judicial nominees confirmed. After the 2004 election, one of Arkley’s top aides, Ann Corkery, who had directed philanthropy at his loan-servicing firm, founded the Judicial Confirmation Network. The group blandly described itself as “an organization of citizens joined together to support the confirmation of highly qualified individuals to the Supreme Court of the United States.” Yet Corkery and her husband Neil would soon become pivotal figures in a broadening coalition of conservatives as they prepared for the confirmation battles ahead.

That coalition, according to a 2006 account in Crisis magazine, was directed by a “war room” of activists “acquainted with each other through Catholic and conservative public causes.” Among them were major players from the Bush reelection campaign, including Gary Marx, who had led the campaign’s outreach to social conservatives, and Greg Mueller, described by Crisis as “the group’s public-relations maestro,” whose public relations firm, Creative Response Concepts, had advised Swift Boat Veterans for Truth. Today, CRC represents the Judicial Crisis Network as well as the Catholic Association, another advocacy group the Corkerys helped launch in 2007, to influence policy-makers on issues concerning “the family, Catholic institutions, religious liberty, and cultural values.” CRC did not respond to repeated requests to interview representatives of JCN and the Catholic Association.

According to Crisis, “Mueller, Leo, and their colleagues would provide the main talking points, media training, rapid response to any attacks on the nominees, assistance with ad buys, and ongoing legal analysis.”

“Our most important goals were to support the idea of judicial restraint, to define the character of the nominee within the first 24 hours, and to continue to provide support as the process wended its way,” Leo told Crisis, reflecting on the war room’s role in the successful confirmation of both Roberts and Alito. “To accomplish this, we engaged in a variety of approaches—an aggressive paid media effort, rapid response activity, and positive messages.”

Mueller described the war room in far more political terms. “We tried to take the approach of corporate crisis management, along with the daily political communications that go on in a political campaign.” It fell to Marx, fresh off the Bush-Cheney campaign and newly appointed as JCN’s first executive director, as Crisis wrote, to develop “a state-based strategy that would target the political pressure points—an organization that would make Democratic senators in Republican states feel the political heat.”

During Bush’s second term—as Kavanaugh’s nomination to the DC Circuit was held up over a period of years, with Democrats arguing that his role in drafting the Starr Report and in the investigation of the suicide of Clinton aide Vince Foster had marked him as too partisan to warrant his confirmation as a judge—the war room kicked in. JCN openly threatened Democratic senators with the Daschle treatment. If lawmakers filibuster Kavanaugh, JCN warned in 2006, a midterm-election year, “Americans in key states will react just as they did when former Senate Democrat leader Tom Daschle did the same thing. Americans care about judges and the role of the courts in our society.” The Senate confirmed Kavanaugh two weeks later, by a vote of 57-36.

Today, the president of JCN is not a public figure like Marx but a player so behind-the-scenes as to barely leave a public trace. But Daniel Casey, a public-relations, political, and “crisis” consultant, is a veteran of the Bork confirmation battle—a fight that conservatives painfully lost, triggering the scorched-earth organizing JCN spearheads today.

Then the executive director of the American Conservative Union, Casey was “a crucial player” in the Bork fight, said Patrick McGuigan, who worked then for the Free Congress Foundation, a political advocacy group founded by religious-right architect Paul Weyrich that helped push the GOP to the right. The dust jacket of Ninth Justice, a book McGuigan wrote with Weyrich’s daughter Dawn, detailing each move and countermove in the Bork fight, describes McGuigan and Casey as “intensely Republican, devout Catholics, ardent admirers of the nominee—who understood from the first moment of the battle that they were involved in the most significant political confrontation of their lives.”

McGuigan, who now works as a journalist in Oklahoma, described his relationship with Casey as “co-captains” in the Bork battle, in which conservatives were heavily outspent and outmaneuvered by the liberal opposition. He said that at the time, there was “insufficient organization of ideas and messaging on the conservative side of things compared to the left side.” Casey’s forte, said McGuigan, was “neighborhood by neighborhood, precinct by precinct, household by household organization patterned after the labor unions, but on the conservative end of the spectrum instead. I think that’s what Dan was good at.” (Casey declined to be interviewed for this article, referring interview requests to Peter Robbio at CRC, who did not respond.) In the years after the failure of the Bork nomination, conservatives saw the appointment of Kennedy, and then of Bill Clinton’s nominees Ruth Bader Ginsburg and Stephen Breyer. Although Kennedy was nominated by a Republican, he proved a bitter disappointment to conservatives, particularly for his majority opinion in Lawrence in 2003, ruling anti-sodomy laws unconstitutional—a ruling that led, 12 years later, to the legalization of same-sex marriage nationwide.

During the Bork hearings, Casey argued that “the American people should be outraged that the liberals are spending millions of dollars to try to buy a Supreme Court seat.” Three decades later, Casey is the president of the moneyed advocacy organizations JCN and the related Judicial Education Project, as well as of Catholic Voices. He is also treasurer and director of the Catholic Association Foundation and the Catholic Association. Together, they are part of a multimillion-dollar dark-money campaign backing a relentless drive by Trump and his Republican allies in the Senate to reshape the federal judiciary for generations, from federal trial courts all the way to the Supreme Court, and to shape public opinion about Catholicism and religious liberty.

JCN does not disclose the identity of its donors. But the group has said it anticipates spending at least $10 million advocating for Kavanaugh’s nomination. While many of the early ads focused on promoting Kavanaugh as a mainstream, impartial jurist admired by former clerks of all political stripes, the most recent ads touted him a “grand slam for conservatives” and warned Democrats against succumbing to “pressure from East Coast liberals.”

After 2008, the Judicial Confirmation Network changed tacks, from battering the opponents of Bush’s court nominees to blocking President Barack Obama’s. JCN, now renamed the Judicial Crisis Network, was the first conservative organization to blast Obama’s selection of Sonia Sotomayor—a Catholic—as “a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written.” Although JCN had repeatedly claimed that liberal Democrats had unfairly attacked conservative Catholics, it again did not hesitate to attack a liberal Catholic.

John Gehring, Catholic program director at Faith in Public Life, a liberal group that advocates for progressive expressions of faith in politics, said that for conservative Catholics, Obama’s presidency “was very formative to the idea that Catholic identity was under siege by an administration that had elitist contempt for what the church believes.” The University of Notre Dame’s invitation to the pro-choice Obama to deliver a commencement speech in 2009, said Gehring, triggered “a huge divide” and “an earthquake in Catholic political conversation.” The Obama administration’s policies, particularly the contraception benefit written into the Affordable Care Act, which became the core target of conservatives’ legal strategy on religious freedom, further inflamed the world of conservative Catholicism.

But Gehring argues that this “well-funded, deep network” has “had disproportionate influence on what Catholic identity is in the public square and in politics.” He said the network has helped to create the distorted impression that Catholic priorities are limited to opposing abortion and LGBTQ rights, when traditional Catholic social-justice teaching includes a range of issues such as immigration, poverty, and the environment. Gehring pointed out, as an example, that conservative Catholics ignore the 1891 papal encyclical, “Rights and Duties of Capital and Labor,” written in support of workers rights, including the right to unionize.

What’s more, the conservative network’s position on abortion doesn’t represent the majority of Catholics. According to the Pew Research Center, 53 percent of Catholics say abortion should be legal in all or most cases. O’Brien, of Catholics for Choice, also points out that “Catholic women have abortions at the same rate as women of other faiths or no faith.” Kavanaugh’s decisions as an appellate judge on reproductive rights and the role of religion in politics, O’Brien added, “underscore just how out of touch he is with the majority of Catholics who are pro-choice and who support a healthy separation between church and state.”

During the Obama era, the dark money ramped up. The Wellspring Committee, a nonprofit formed in 2008 where both Corkerys have served as president, became the chief funder of JCN, bankrolling its campaigns to block Merrick Garland’s confirmation, and, under Trump, to support the nomination of Neil Gorsuch and other nominees to federal courts. According to an investigation last year by the Center for Responsive Politics, “most of Wellspring’s funds, in turn, came from a single mysterious donor who gave the organization almost $28.5 million—nearly 90 percent of its $32.2 million in revenues” in 2016. According to this report, Wellspring gave more than $23 million to JCN in 2016, quadrupling its 2015 donation to the group of $5.8 million.

Wellspring also donated money to the Catholic Association, another nonprofit the Corkerys helped found, this one to advocate on behalf of “religious liberty,” and to the Federalist Society. In yet another sign of the intimacy of this network, the association paid Leo, known as Trump’s Supreme Court whisperer, $120,000 for “management consulting.” (Leo also earned $435,000 from the Federalist Society that year, according to its tax return.) Neither Leo nor the Corkerys responded to requests for comment.

Another mysterious Corkery-linked company, BH Group LLC, created in 2016, donated $1 million to Trump’s inaugural committee. Not much is known about what BH Group does, or who its principals are, but in 2016, the Corkerys’ Wellspring Committee paid BH Group $750,000 for “public relations,” according to its tax return, and JCN paid the firm $947,000 for “consulting services.” And Leo later identified BH Group as his employer in an FEC filing.

In early May 2017, about a month after Gorsuch was confirmed to the Supreme Court, Leo was awarded the prestigious Canterbury Medal from the Becket Fund for Religious Liberty, billed by the organization as “religious liberty’s highest honor.” A major Christian-right legal firm, the Becket Fund is best known for its victory in 2014’s landmark Hobby Lobby case, in which the Supreme Court ruled that the Affordable Care Act’s requirement of contraceptive coverage violated the company’s religious freedom. In his acceptance speech at a gala held at The Pierre, a New York luxury hotel overlooking Central Park, Leo, in white tie, could barely conceal his elation that Trump had beaten the odds to win the White House. Looking back on the campaign, Leo recalled the “fear that permeated every day in that countdown to November 8” and rejoiced at the “amazing turn of events, thanks to our 45th president.”

With Trump as president, Leo is, for all practical purposes, on the inside, as a handsomely compensated guide to judicial nominees who will satisfy religious conservatives. JCN runs the outside game, spending its mounds of dark money to promote the president’s—or rather, Leo’s—judicial nominees.

But even as the Trump administration was already well on its way to stacking the judiciary, including the Supreme Court, with judges inclined to expand the reach of Hobby Lobby, Leo had not quite let go of the urgency of the Obama years—or what he’d seen as the threat of a potential Hillary Clinton presidency suppressing religious freedom. “As government policy becomes more grudging toward religious freedom, that attitude spreads in the broader culture. A hostile stance in Washington creates space for groups with kindred ideological designs,” Leo said, going on to warn of even more dire consequences. “A government that suffocates something so elemental as freedom of religion is not likely to be respectful of any other right.”

At one point, he released the tension with a joke at Clinton’s expense. “Of course everyone thought they knew how the election was going to go,” Leo said. “The Democratic nominee looked so confident, so relaxed, so content. With just days remaining, what could possibly go wrong?” And then, “Well, not everyone had access to Rebekah Mercer’s crystal ball.”

At the time Leo spoke, Mercer’s family’s data-analytics firm, Cambridge Analytica, was not yet under federal investigation for harvesting private Facebook data and potentially violating US election laws. But even so, it was striking that he referenced the Mercer family—whose political giving is led by Rebekah and her father Robert, the reclusive, Trump-supporting, Republican financier—at a celebration of religious freedom, given that one of the family’s pet projects, Breitbart News, has long been a hotbed of Islamophobia and anti-Semitism. It turns out that Mercer had also long been a generous funder of an array of organizations in Leo’s orbit—the conservative legal and Christian organizations that claim to represent ordinary citizens fed up with Democrat-appointed “judicial activists” and Democratic “gridlock” in holding up Republican nominees.

Charity filings show that between 2013 and 2016, the Mercer Family Foundation gave a million dollars to the Becket Fund, on whose board Leo has served since 2014. Between 2013 and 2015, the foundation donated nearly $6 million to the Federalist Society. In fact, Rebekah Mercer’s ties with Leo go even deeper.

In 2014, Leo joined the board of a new group called Reclaim New York, led by Mercer and Steve Bannon, then ensconced at Breitbart. The group claims to provide citizen trainings to “empower citizens to engage their state and local government,” but critics call it an astroturf organization dedicated instead to sowing distrust in state and local government and laying the groundwork for far-right Republican candidates to win elections. In 2015, Reclaim New York shared office space with Cambridge Analytica in midtown Manhattan and paid the firm for data-analytic services. (Reclaim New York did not respond to a request for comment about Leo’s role.) In 2016, Leo, along with Mercer and Kellyanne Conway, now a top adviser to President Trump, incorporated a related lobbying organization, the Reclaim New York Initiative.

A core element of Leo’s strategy, throughout the Bush and Obama years, was to portray religious freedom, a treasured American virtue, as under siege by supposed government overreach and disdainful, elite liberal culture. In another May 2017 speech, this one before the Acton Institute, a conservative think tank, Leo placed the blame on the left for making confirmation battles “so intense.” Liberals, he said, want to invest the Supreme Court with “something close to absolute power,” including the “creation of rights found nowhere in the text or structure of the Constitution,” citing Griswold v. Connecticut, from 1965, which struck down laws criminalizing the sale of contraception; Roe v. Wade, from 1973, which legalized abortion; and Obergefell v. Hodges, from 2015, which legalized same-sex marriage.

But now, he said, thanks to Trump, liberals were finally losing control of the courts. “For constitutionalists,” Leo told the Acton Institute, “our improbable 45th president has turned out to be, to borrow a phrase from his predecessor, the change we’ve been waiting for.”

Sarah PosnerTWITTERSarah Posner is a Reporting Fellow with the Investigative Fund and expert on the intersection of religion and politics.

trms lied in previous confirmation on torture?

zelig of rw lawyering

news broke that Christine Blasey Ford—a 51-year-old professor of psychology at Palo Alto University in Northern California—had accused Supreme Court nominee Brett Kavanaugh of attempting to rape her at a party back in 1982, many of the responses were fair-minded and even-handed. A long list of people have stressed that while Kavanaugh hasn’t been convicted of anything, they definitely want to hear, in detail, all that Ford has to say—especially in light of the fact that Kavanaugh is up for a lifetime appointment on the highest judicial body in the United States.

But on the far right, some wingnuts have been quick to either demonize Ford or turn her accusation into a Republicans-versus-Democrats argument. Kavanaugh is their guy, the GOP is their party—and Ford’s accusation, they immediately assume, is nothing more than a Democratic conspiracy.

Here are five of the most appalling reactions to Ford’s accusation that have come from the far right.

Sen. Mitch McConnell Turns Ford’s Accusation into an Attack on Dianne Feinstein

As Senate majority leader, Kentucky’s Mitch McConnell has been a ruthless, vindictive partisan whose top priority is sticking it to Democrats—not the wellbeing of the country. And he made that abundantly clear when, after learning that Ford had accused Kavanaugh of attempted rape, his knee-jerk response was to attack Sen. Dianne Feinstein (the top Democrat on the Senate Judiciary Committee) rather than wanting to hear what Ford has to say. McConnell views Ford’s allegation in strictly partisan terms, faulting Feinstein for not coming forward with the information she had on Ford and Kavanaugh sooner. But Ford, at first, had requested anonymity. And McConnell, always a Republican first and an American second, fumed, “Now, now, at the 11th hour, with committee votes on schedule—after Democrats have spent weeks and weeks searching for any possible reason that the nomination should be delayed—now, now, they choose to reveal this allegation.”

Donald Trump Jr. Mocks, Belittles Christine Blasey Ford

After Ford decided to reveal her identity, it didn’t take Donald Trump, Jr.—vice president of the Trump Organization—long to begin ridiculing and belittling her. In an Instagram post, the president’s 40-year-old son posted a mock “letter” that was written in crayon and labeled “Judge Kavanaugh’s sexual assault letter found by Dems.” The mock “letter” read, “Hi, Cindy, will you be my girlfriend? Love, Brett,” with boxes for checking either “yes” or “no.” And in a mocking tone, Trump, Jr. said of Kavanaugh, “Oh, boy, the Dems and their usual nonsense games really have him on the ropes now.”

Matt Drudge, Grabien News Attack Kavanaugh Accuser by Confusing Her With Someone Else

Matt Drudge’s The Drudge Report attempted to smear Ford on Twitter by linking to a hit piece on her that had originally been published by Grabien News. In the article, Grabien tried to paint Ford as a bad professor who had received a lot of negative online reviews from her students. One of the reviews, posted on RateMyProfessor.com on September 25, 2014, said, “Christine Ford is the worst educator I have experienced. Avoid taking her class and avoid any interaction with this person.” But the Christine Ford in that review is Christine A. Ford, a licensed social worker who taught at California State University, Fullerton—not Kavanaugh’s accuser Christine Blasey Ford, who is employed by Palo Alto University. In fact, Fullerton is in Orange County south of Los Angeles, and is well over 300 miles from Palo Alto. Grabien has since retracted the inaccurate story that the Drudge Report was so quick to promote.

Women for Trump’s Amy Kremer: Democrats Want to ‘Gin Up the Hysteria Machine’

Republicans had no problem with Sen. Feinstein when, in late 2017, she demanded Democratic Sen. Al Franken’s resignation in response to sexual harassment allegations. Franken didn’t get a pass from Feinstein simply because he was a Democrat: Feinstein wanted him to step down, party affiliation be damned—and the Minnesota senator resigned. But the minute Feinstein has legal concerns about a Republican Supreme Court nominee, Republicans view her as a one-woman hit squad.

During a September 17 interview with CNN’s Chris Cuomo, Amy Kremer (co-founder of Women for Trump) had the same knee-jerk reaction to Ford’s accusation as McConnell: she viewed it in strictly partisan terms, insisting that Democrats are trying to “gin up the hysteria machine” with a “dog and pony show.” Kremer also asserted that there should be no public testimony from Ford, only closed-door hearings—which is ludicrous. Considering that Ford is making a very serious accusation and that Kavanaugh, if confirmed, could still be on the Supreme Court 30 years from now, anything the Palo Alto University professor has to say on the matter should be heard publicly.

Joe Walsh Attacks Democrats for Waiting to ‘Drop This Dirt’

Even former Rep. Joe Walsh (a Tea Party wingnut) called Donald Trump, Jr. out for mocking Christine Blasey Ford, correctly denouncing him as an “uncaring, narrow-minded idiot” on Twitter. But Walsh, like McConnell and Kremer, has turned Ford’s accusation into an opportunity to play partisan politics, posting on Twitter, “So Dems waited until the very last minute to drop this dirt, and now they want to wait again to hear from her? You don’t think they’re trying to drag this thing out, do you?”

Walsh likes to see himself as a law-and-order man, but when a Republican Supreme Court nominee is accused of attempted rape, it’s all the Democrats’ fault, in Walsh’s mind.

AN cory f

From the moment the world learned that there were serious accusations of sexual misconduct against Supreme Court nominee Brett Kavanaugh, countless conservatives have done their best to mock, downplay, and disregard the very serious allegations.

Now that the accuser, Christine Blasey Ford, has come forward, they haven't slowed their attempt to discredit, demean and dismiss her at all. If anything, their attacks have only ramped up as the allegations became more serious and credible.

Fox News commentator Stephen Miller (no relation to the White House staffer) offered up some of the worst takes in the aftermath of Ford's revelations. Ford said that Kavanaugh and a friend of his, Mark Judge, held her down in a bedroom at a party in high school while Kavanaugh groped her and tried to remove her clothes. She says they covered her mouth, turned up music to muffle her screams, and says she feared they'd inadvertently kill her.

Miller's response? "It was drunk teenagers playing seven minutes of heaven."

In this way, he doesn't even accept Kavanaugh's denial that the incident ever took place. He seems to believe that it happened, but he dismisses any claim that it was wrong — despite the fact that Ford says she feared for her life, says it was against her will, and experienced decades of trauma as a result.

David French, a columnist for National Review, conversely, agrees that the charges against Kavanaugh are serious. But from the beginning, he's been clear that there's little reason to believe a woman who brings charges against a well-respected conservative judge.

Before Ford had come forward, he said, "So far, the claims against Kavanaugh are _still_ a dreadful dirty trick."

After she went on the record with the compelling details of her allegations, his mind didn't change. He said it's more likely that he claims are false than that they're true, based on little more than minor (and easily explained) discrepancies between her account now and notes taken by her therapist about the incident in 2012. And, perhaps, the fact that she's a Democrat.

Ed Whelan, a conservative legal writer, has been a vociferous defender of Kavanaugh from the beginning of his nomination. Without providing any justification aside from his faith in Kavanaugh, he has declared that Ford is not telling the truth about her accusations. He's openly speculated that she might have had false memories about the event, without acknowledging that it's at least as likely, if not more, that Kavanaugh could have blacked out himself during a drunken assault. He also fails to acknowledge one of the major lessons of the #MeToo movement — that many men who seem to be upstanding citizens are also guilty of terrible offenses.

Erick Erickson, a conservative writer at The Resurgent, has been one of the most prolific disseminators of vicious talking points against Ford. He has denied that there should even be hearings about the accusation and has baselessly said that Ford is not credible.

He writes: "While I suspect the accuser will bring forward some friends who claim she told them at the time, because that is just how convenient this story is, thus far none have come forward."

Ford has presented a therapist's notes from 2012 about the assault and her husband's corroborating testimony, but this is not enough for Erickson. But, apparently, based on this quote, nothing could be enough for him. If her friend's come out to confirm the report, that's just a little too "convenient." If they don't, well then how come? Isn't that just a little too suspicious?

He also repeatedly calls her a "Bernie Sanders supporter," as if that damages her credibility.

Another favorite line of attack from many of these conservatives: Going after Sen. Dianne Feinstein (D-CA), who kept Ford's letter quiet when she wanted to remain anonymous. They call the late-game revelation of the accusations a dirty trick, rather than taking seriously the fact that coming forward with these accusations is incredibly risky and emotionally and socially costly. This put both Feinstein and Ford in a very fraught position.

Why is it so difficult to come forward? Because accusers know they will be attacked — and these conservatives have proven that to be true.

Kavanaugh’s Perjury Avalanche — 50 Years in the Making

kpfa rollback of nuclear options over time; tecnically in effect for gorsuch but not

used by agreement bipartisan? (gop punted on 3-3 worst, rest got pass incl BK; gang of 8 incl diane f; fillibuster wd have obviated cory etc rear guard tactics

https://slate.com/news-and-politics/2018/09/judge-brett-kavanaugh-should-be-impeached-for-lying-during-his-confirmation-hearings.html

graves

Much of Washington has spent the week focusing on whether Judge Brett Kavanaugh should be confirmed to the Supreme Court. After the revelations of his confirmation hearings, the better question is whether he should be impeached from the federal judiciary.

I do not raise that question lightly, but I am certain it must be raised.

Newly released emails show that while he was working to move through President George W. Bush’s judicial nominees in the early 2000s, Kavanaugh received confidential memos, letters, and talking points of Democratic staffers stolen by GOP Senate aide Manuel Miranda. That includes research and talking points Miranda stole from the Senate server after I had written them for the Senate Judiciary Committee as the chief counsel for nominations for the minority.

Receiving those memos and letters alone is not an impeachable offense.

No, Kavanaugh should be removed because he was repeatedly asked under oath as part of his 2004 and 2006 confirmation hearings for his position on the U.S. Court of Appeals for the D.C. Circuit about whether he had received such information from Miranda, and each time he falsely denied it.

For example, in 2004, Sen. Orrin Hatch asked him directly if he received “any documents that appeared to you to have been drafted or prepared by Democratic staff members of the Senate Judiciary Committee.” Kavanaugh responded, unequivocally, “No.”

In 2006, Sen. Ted Kennedy asked him if he had any regrets about how he treated documents he had received from Miranda that he later learned were stolen. Kavanaugh rejected the premise of the question, restating that he never even saw one of those documents.

...

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MMA

enate hearings were held for Trump's Supreme Court nominee Brett Kavanaugh.As the hearings got underway, the press found itself getting very easily distracted by the chaos coming out of the White House. Word of a new book by Bob Woodward detailing the hectic state of the Trump White House quickly grabbed headlines. Then, when an anonymous administration official penned an op-ed critical of Trump’s behavior and calling into question his fitness for office, the media went into a frenzy discussing the piece and speculating about who the author may be.

You would think that an unpopular president distrusted by his own staff making a lifetime appointment of a historically unpopular pick to the Supreme Court would be a national scandal.

It isn't.

The media is focused on the chaos of Trump's White House, but it's being covered as a human interest story instead of how the most powerful office in the history of the world is making decisions that affect the rest of us. And that has largely kept negative scrutiny off of Brett Kavanaugh.

If this were any other administration in recent history, Kavanaugh's nomination would be in serious trouble, perhaps already sunk. But the media simply hasn't really bothered to engage with that story.

With the media often focused elsewhere (and convinced that the hearings would be boring), here are some of the critical moments that you might have missed:

Sen. Patrick Leahy (D-VT) repeatedly questioned Kavanaugh on his use of documents stolen from Democratic staffers when Kavanaugh worked on judicial nominations for the George W. Bush White House.

Sen. Kamala Harris (D-CA) questioned Kavanaugh on reproductive rights and pressed him to name any laws that allow the government to regulate male bodies. He could not.

Harris also explained to Kavanaugh that a phrase he used in an op-ed, “racial spoils system,” is “commonly used by white supremacists.”

Sen. Mazie Hirono (D-HI) exposed that Kavanaugh “disparaged the Native Hawaiian community” in an op-ed he wrote.

Hirono also brought attention to Kavanaugh’s attempt to erect an unnecessary barrier to a minor immigrant obtaining an abortion.

Sen. Dick Durbin (D-IL) said he hoped Kavanaugh would ask for his own hearing to be suspended in light of Republicans withholding a massive amount of documents related to Kavanaugh’s history

Sen. Sheldon Whitehouse (D-RI) highlighted the role of right-wing and corporate dark money behind Kavanaugh’s nomination.

During one of the few interesting exchanges involving a Republican senator, Kavanaugh indicated his belief that birth control medications are “abortion-inducing drugs” while being questioned by Sen. Ted Cruz (R-TX).

And the hearings are not even the biggest story: Republicans are engaging in a widespread effort to obscure Kavanaugh’s record by rushing the hearings in the first place and refusing to release tens of thousands of documents. Heck, Republicans even put a former Kavanaugh deputy and current lawyer for Trump's White House counsel in charge of the document release process, with barely a mention from the media.

The entire nomination of Brett Kavanaugh, from beginning to end, is a monumental scandal.

It would be great if the media treated it for the sham it is instead of playing along with Trump.

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http://www.theherald-news.com/2018/09/02/gop-lawyer-caught-in-crossfire-on-kavanaugh-russia-probe/aukw7hj/

WASHINGTON – Bill Burck is a Republican insider being pushed into the limelight by two of the biggest political dramas in Washington: the Russia investigation of Robert Mueller and the Supreme Court nomination of Brett Kavanaugh.

He's a lawyer for current and former Trump White House officials who have been touched by the Russia probe. As George W. Bush's longtime public records lawyer, he's in charge of culling documents for the Senate from Kavanaugh's White House years. He's also Kavanaugh's friend and former deputy at the Bush White House.

That makes Burck, 47, "triply-conflicted," say some Democrats, They have denounced the lawyer's role in the unusual and potentially precedent-setting arrangement to expedite the gathering of Kavanaugh's government records before Senate confirmation hearings that start Tuesday.

Sen. Richard Blumenthal, D-Conn., told reporters that Republicans are "cherry-picking" what Kavanaugh records are available. He called it "a disservice to the American people."

Burck's friends and allies see in the Yale-educated lawyer a straight-shooting, skilled professional who cares less about partisan battles than providing the best legal representation possible. For several years in a row a legal publication named him a "White Collar MVP."

Burck scoffs at critics who see partisan politics at play in his client roster. He says his work for Bush reviewing Kavanaugh's records has little to do with representing Donald Trump-world clients in Mueller's investigation.

"I think partisanship may be getting in the way of rational thought," Burck told The Associated Press.

The weeks ahead are not the type of public spotlight Burck necessarily seeks. While he gravitates to high-profile cases, Burck appears to prefer a behind-the-scenes role as the lawyer people call when they are in a tough spot.

Those who know the New England native from his days as a clerk to retired Supreme Court Justice Anthony Kennedy recall a bright but laid-back colleague.

"He's a pretty rare combination of book smarts and good people skills and good judgment," said attorney Jim Bennett, who was a fellow Kennedy clerk in the late 1990s and has remained friends with Burck. "People gravitate to him as a lawyer because he inspires confidence."

The son of a corporate lawyer, Burck showed ambition, working as a federal prosecutor in New York and at the Bush White House as Kavanaugh's deputy staff secretary. His private practice caseload has come to read like a legal-thriller index.

Burck was lead counsel to FIFA in the international football association bribery scandal and for insurance giant AIG over claims it misled the federal government during the 2008 finance crisis. He was counsel to the Koch-backed Americans for Prosperity in its challenge to a California campaign finance law that required nonprofit groups to disclose their membership. That fight played out while Kamala Harris, now a senator, was the state's attorney general.

These days Burck represents White House counsel Don McGahn, former White House adviser Steve Bannon and former chief of staff Reince Priebus in the Mueller probe.

McGahn, who has been shepherding Kavanaugh's nomination through the Senate, has become an important witness in Mueller's investigation. Not long after the extent of McGahn's meetings with investigators were disclosed in news reports, Trump tweeted that McGahn would be leaving the White House after Kavanaugh was confirmed. Senate votes are expected at the end of September, in time for the start of the new Supreme Court session Oct. 1.

Kermit Roosevelt, a University of Pennsylvania law school professor who played basketball and shared happy hour beers with Burck when they were both clerks, doesn't consider Burck to be an "extreme conservative." Roosevelt expects the role Burck is playing now representing the Trump officials is "a little ideologically to the right of where I'd expect him to be."

Burck in some ways may be more of a White House outsider than ally because all three of his Trump-related clients were essentially fired by the president.

But that doesn't satisfy Democrats who see in Burck a too-intricate circle of connections. They're particularly upset that Senate Republicans only requested Kavanaugh's documents from his work in the White House counsel's office, rather than his three years as Bush's staff secretary. They say the decision has hidden from view potentially millions of pages that could shed light on Kavanaugh's thoughts on Bush-era policies, including the use of harsh interrogation techniques such as waterboarding.

"The process reeks," said Brian Fallon, a former aide to Hillary Clinton and Sen. Chuck Schumer, D-N.Y., Fallon, now executive director of Demand Justice, a group that opposes Kavanaugh's confirmation, added: "Burck has his thumb in every pie."

Before the Senate hearing Tuesday, Burck's team announced it had largely concluded its document production, with more than 267,000 pages from Kavanaugh cleared for public release. That's more than any other court nominees, Republicans say, but far fewer than the 900,000 that National Archives initially estimated for the job.

In a letter to GOP Sen. Chuck Grassley of Iowa, the Senate Judiciary Committee chairman, Burck's team said that duplicate documents cut that number to some 600,000. An additional 174,000 pages were made available to the committee on a confidential basis and about 100,000 were personal.

While the letter says Bush sought to err on the side of openness and transparency, the Trump White House – separate from Bush – is withholding 100,000 pages on the basis of presidential privilege. Schumer called the White House's move "a Friday night document massacre."

Even before Trump chose a replacement for Kennedy this summer, Republicans knew they had a paper trail problem if Kavanaugh became the nominee. He would be the first public-sector pick from the email age with an unprecedented amount of public documents. Republicans are eager to confirm the new justice before the November election, when their slim majority is being challenged. They began crafting a workaround.

Aides to Grassley were on a conference call the day after the nomination was announced and looking for a solution. What could be called the "Burck process" would become a potentially precedent-setting approach. The National Archives said in a statement later that it's "something that has never happened before."

Republican advocates say the new system pushed the Senate more fully into the digital age, with computer software to more quickly search and sort hundreds and thousands of pages, much the way it is done at big law firms. They say the National Archives still has final review over the production, but the private lawyers – Burck hired a team of about 50 – can do the job much faster.

Grassley has welcomed the expedited review and criticized the Democratic push for additional documents as a costly paper chase.

Lisa Mascaro

JCN hired covington

Former Senator Jon Kyle Has Been Named McCain's Replacement — And He Was Kavanaugh's 'Sherpa' Through Confirmation Process

By Laura Clawson, Daily Kos

McCain's wife Cindy tweeted her support.

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concern on CPP section 1.11? AEP v Conn?

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Senate hearings regarding Trump Supreme Court nominee Brett Kavanaugh begin on Tuesday September 4. That might come as a surprise to you considering that Kavanaugh has only been discussed for 84 seconds on nightly network news shows since July 10.

The media is frequently favoring voices who favor Kavanaugh's confirmation. The AP has quoted far more pro-Kavanaugh voices than people working to stop his nomination. Additionally, Sinclair stations are running must-runs urging his confirmation.

The fact of the matter is that Kavanaugh has an extreme record with a partisan history. Conservatives are being silent to reduce the risk of backlash, but they have openly admitted that any Trump nominee would overturn Roe v. Wade. Reproductive rights access is very much on the line with Kavanaugh's nomination. The NRA is thrilled with Kavanaugh's stance against an assault weapons ban. Extreme anti-LGBTQ groups are lining up behind Kavanaugh. Karl Rove admitted that Kavanaugh was involved with every policy decision that the Bush administration made.

Meanwhile, conservatives are praising Kavanaugh as a nice guy who has daughters.

Kavanaugh's approval ratings are at a record low, with numbers not seen since Robert Bork. And yet the media is generally just treating his nomination as inevitable. That is media malpractice.

They'll have no choice but to cover the opposition once hearings start this week. They won't be able to ignore the growing opposition anymore once Kavanaugh is in the spotlight.

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Brett Kavanaugh, President Donald Trump’s nominee to replace the retired Justice Anthony Kennedy on the U.S. Supreme Court, has been receiving a lot of praise from the far right along with plenty of criticism from liberals and progressives. Social conservatives are hoping that Kavanaugh—a far-right social conservative and a “strict constructionist” or “originalist” comparable to the late Antonin Scalia—will vote to overturn Roe v. Wade if confirmed by the U.S. Senate. And Kavanaugh’s nomination has drawn praise from the Family Research Council, Concerned Women for America and other Christian Right groups. But not all right-wingers are happy with the nomination, including Fox News’ Judge Andrew Napolitano and commentator Ben Shapiro.

In contrast to Sean Hannity and others at Fox News, libertarian Napolitano has never been a Republican party liner. Philosophically, Napolitano has a lot more in common with former Rep. Ron Paul or former New Mexico governor and 2012/2016 Libertarian Party presidential nominee Gary Johnson than he does with Sen. Orrin Hatch or Sen. Lindsey Graham. And Napolitano has made it clear that Kavanaugh isn’t someone he would have nominated.

Interviewed by the libertarian Reason Magazine’s Nick Gillespie in July, Napolitano declared, “I was very disappointed with the appointment of Kavanaugh because I believe he comes from the heart and soul of the Washington establishment.”

Napolitano told Gillespie that although Trump campaigned on “draining the swamp” in 2016—“the swamp” being Trump’s term for the Washington, DC establishment—Kavanaugh is as establishment as it gets.

The judge went on to explain why he considered Kavanaugh problematic from a 4th Amendment standpoint. Kavanaugh, Napolitano told Gillespie, “believes that the 4th Amendment does not apply to the NSA, that it only applies to law enforcement.”

Kavanaugh, Napolitano said, is much too quick to “find creative ways” to “justify police excess.”

Michigan Republican Rep. Justin Amash has expressed 4th Amendment concerns about Kavanaugh as well. On July 10, Amash tweeted, “Kavanaugh is not another Gorsuch—not even close. Disappointing pick, particularly with respect to his #4thAmendment record. Future decisions on the constitutionality of government surveillance of Americans will be huge. We can’t afford a rubber stamp for the executive branch.”

Although most of the right-wing criticism of Kavanaugh has come from libertarians, one theocratic social conservative who was initially critical of Trump’s pick was former Pennsylvania Sen. Rick Santorum—who, ironically, has been a big Trump supporter despite allegations that Trump had extramarital affairs with a porn star (Stormy Daniels) and a Playboy model (Karen McDougal) and paid them hush money to keep quiet. Santorum said of Kavanaugh, “He is from Washington. He is the establishment pick. He is the Bush pick. It just seems like Trump, in this case, just bowed to the elite in Washington. I think that’s going to rub a lot of people the wrong way.”

Shapiro, like Napolitano, considers Kavanaugh sympathetic to the Affordable Care Act of 2010, a.k.a. Obamacare—which he believes Kavanaugh upheld in the case Sissel v. Department of Health and Human Services. And Shapiro has joined Napolitano in criticizing Kavanaugh as an establishment nominee who is weak on the 4th Amendment.

Shapiro said of Kavanaugh, “He is more of a law-and-order, sort of William Rehnquist type of judge….(Kavanaugh) is not a big fan of a lot of these sort of civil libertarian decisions that some on the right are fond of.”

On Fox News, Shapiro told libertarian Lisa Kennedy Montgomery, “I’ve got problems with Kavanaugh in general. He’s being pushed very hard by a lot of folks from Team Bush, who knew him way back when and are very fond of him. He’s kind of the D.C. insider pick.”

https://www.alternet.org/brett-kavanaughs-salacious-clinton-memo-exposes-his-deeply-partisan-views-executive-privilege

For both the media and the Democrats, gathering sufficient information about Brett Kavanaugh, Donald Trump's latest Supreme Court nominee, before Senate Majority Leader Mitch McConnell crams him through the confirmation process has seemed nearly impossible. On Monday, however, the Washington Post managed to publish the full text of a much-discussed memo Kavanaugh wrote in 1998. At the time, Kavanaugh was part of special prosecutor Ken Starr's team, working on an open-ended investigation of President Bill Clinton that started with a right-wing conspiracy theory about real estate deals and wound up, years later, being about a sexual relationship Clinton had with White House intern Monica Lewinsky.

The full text of this memo is telling for a couple of reasons. First of all, it's a picture-perfect distillation of the way that disgust and titillation are completely intertwined in the conservative mind and lay the groundwork for the right's sadistic approach to sexual matters. The other is that it offers yet more evidence that Kavanaugh is far from the fair-minded jurist Republicans are portraying, and instead clearly seems to be a partisan hack of the worst sort. On that latter point, there is very ample reason to believe that Kavanaugh will allow Trump to get away with all sorts of grotesque efforts to escape consequences for any illegal dealings with Russian agents.

It's already been reported that Kavanaugh had pushed hard, during his time in the Starr investigation, to ask Clinton a bunch of explicit and repetitious questions about the sexual details of his relationship with Lewinsky. What this memo makes clear is that Kavanaugh's interest in granular detail was more "Penthouse Forum" than "deposition." And his reasoning is made clear when Kavanaugh writes that the goal is to pressure Clinton into resigning or admitting to perjury. The idea was clearly to make the questions so uncomfortable that Clinton would capitulate.

But whatever legal strategy Kavanaugh is advocating, it's hard to look away from how perfectly this memo captures the rat's nest of prurience and puritanical moralism that motivates the religious right — the same movement that hopes to use Kavanaugh to undo decades of legal rulings granting women and LGBT people sexual privacy and autonomy. On one hand, he decries Clinton for "disgusting behavior" that he says "disgraced his Office." On the other hand, he wants to know every single detail, rendered in maximally graphic terms.

Conservatives have long tried to leverage legitimate feminist concerns about power imbalances in relationships like the one between Clinton and Lewinsky in order to paint conservative interest in this case as high-minded instead of leering. We see Kavanaugh playing the same game in this memo, blaming Clinton for turning Lewinsky's life "into a shambles," while avoiding the fact that Starr and his investigative team worked with right-wing operatives to out Lewinsky and parade her around for months in the public square. In this memo, it's clear that Kavanaugh's plan was to draw out Lewinsky's public humiliation even further by rooting around for more explicit details.

Kavanaugh later tried to distance himself from this abusive attitude towards Lewinsky, saying, "I regret that the House of Representatives did not handle the report in a way that would have kept sensitive details in the report from public disclosure." But in the heat of the moment, Kavanaugh was a big advocates of using sexually explicit details as a tool of public humiliation for partisan gain, and didn't care how much it might damage the woman involved.

What's equally telling is how full-throated Kavanaugh was in his belief that the president deserved no special protections from legal inquiry or consequences, even though Kavanaugh's anger, as captured in this memo, is largely about a legal sexual relationship, and not about the president committing perjury in an attempt to conceal it. Kavanaugh denounces Clinton for "frivolous privilege claims" and says he is "strongly opposed to giving the President any 'break' in the questioning."

Kavanaugh's strong objections to the idea of executive privilege dried up the second the topic was something other than exposing the frequency of Oval Office ejaculations. As soon as 1999, Kavanaugh had switched to arguing that a court decision to release the Watergate tapes was "an erroneous decision" because it "took away the power of the president to control information in the executive branch."

He took that position even though the central scandal of the Watergate controversy — a burglary and the resulting cover-up — involved criminal activity. Which was not true of Clinton's affair with Lewinsky, however unethical or distasteful one may find it.

Kavanaugh's view that executive privilege is nearly ironclad -- unless there was oral sex involved -- was strengthened after his time working for George W. Bush, who probably didn't commit adultery while in office, but did get the United States into an unnecessary war based on blatantly false claims and was accused of outing a CIA agent in order to punish her husband for saying so. After all that, Kavanaugh bafflingly concluded in 2009 that "the president [should] be able to focus on his never-ending tasks with as few distractions as possible" and so "should be excused from some of the burdens of ordinary citizenship," such as dealing with subpoenas and other legal issues.

Kavanaugh and his allies would like to portray this history as an evolution in thought. The likelier explanation, especially based on the timing, is that Kavanaugh's views on executive privilege depend not on the severity of the legal morass any president is involved in — lying about an affair being far less important than lying to launch a war or cover up a political burglary — but on whether that president happens to be a Republican.

McConnell clearly wants to get Kavanaugh's butt into a seat on the Supreme Court before it begins reviewing the inevitable arguments over how much President Trump's executive privilege should shield him. Such cases might involve answering a subpoena by Robert Mueller, the consequences of campaign finance violations, foreign emoluments, or even a conspiracy to defraud the United States by working with Russian intelligence to hack Democratic email accounts during the 2016 presidential campaign.

The R next to Donald Trump's name on the ballot might even be enough to shield him from any prurient sexual questions related to potential laws broken when paying off porn stars for their silence about sexual activity. Even though such questions were deemed by Brett Kavanaugh to be among the country's most pressing problems 20 years ago.

https://www.alternet.org/brett-kavanaugh-may-have-committed-perjury-gop-suppressing-evidence

One of the top concerns of Democrats on the Senate Judiciary Committee regarding President Donald Trump's Supreme Court Nominee, Judge Brett Kavanaugh, is whether he knew anything about, authorized, or advised the Bush administration on their torture program for detainees in the War on Terror while he served as White House staff secretary.

In 2006, during his confirmation to the D.C. Circuit, Kavanaugh told senators, under oath, that he was "not involved in the questions about the rules governing detention of combatants," and had no knowledge of issues about "the legal justifications or the policies relating to the treatment of detainees," according to NBC News. However, Sens. Patrick Leahy (D-VT), Dianne Feinstein (D-CA), and Dick Durbin (D-IL) assert that multiple documents and email chains show Kavanaugh was briefed on the issue, implying he was not honest with the Senate.

Some of the documents Judiciary Democrats say prove Kavanaugh's knowledge of the torture program, and potentially even suggest that he perjured himself in his earlier confirmation, have been marked "Committee Confidential" by Senate Judiciary Chairman Chuck Grassley (R-IA) — meaning that even most senators are not allowed to review them.

Also of concern is whether the White House is playing any role in steering document requests. On Friday, Leahy submitted a letter to White House Counsel Don McGahn, demanding to know what was discussed at a meeting between him and Judiciary Republicans regarding Kavanaugh.

According to a press release from Leahy, prior to the meeting on July 24, Republicans were prepared to ask the National Archives to release documents produced during Kavanaugh's time as White House Staff Secretary for former President George W. Bush. But after the meeting, Republicans refused to do so, allowing a limited release of documents curated by "a lawyer representing the former president."

"In the 44 years I have served in the United States Senate, I have seen 19 nominations to the Supreme Court, including the nomination of every current member of the Court," said Leahy. "I have never before seen the White House, under either a Republican or Democratic president, usurp or direct the parameters of the Judiciary Committee’s document request regarding a Supreme Court nominee. I find it troubling that the White House and Judiciary Committee Republicans are stifling transparency rather than working together to provide the necessary documents for the Senate to do its work. The American people deserve the unvarnished truth about Judge Kavanaugh."

McGahn has played a critical role in getting Trump's parade of far-right judicial nominees waved through the Senate, and has expressed his avowal to put two Supreme Court justices on the bench before leaving his role in the White House.

In addition to pressuring Judiciary Republicans to release the full set of documents, Senate Democrats have also filed a Freedom of Information Act request, and Senate Minority Leader Chuck Schumer (D-NY) has threatened to sue the National Archives to make them public.

one author of tort memo made judge? brett k lied about his involvment in senate confirmation hearings (and they are pissed; trying to limit docs, senate had to FOIA?!)

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https://www.alternet.org/news-amp-politics/donald-trump-just-sign-much-deeper-failings-united-states-and-world

tom e

...In a sense, it may hardly be more out of the ordinary to face a failing experiment in what, earlier in this century, top officials in Washington called “nation building” than in our individual lives. In this case, the nation I’m thinking about, the one that seems in the process of being unbuilt, is my own. You know, the one that its leaders -- until Donald Trump hit the Oval Office -- were in the habit of eternally praising as the most exceptional, the most indispensable country on the planet, the global policeman, the last or sole superpower. Essentially, it. Who could forget that extravagant drumbeat of seemingly obligatory self-praise for what, admittedly, is still a country with wealth and financial clout beyond compare and more firepower than the next significant set of competitors combined?

Still, tell me you can’t feel it? Tell me you couldn’t sense it when those election results started coming in that November night in 2016? Tell me you can’t sense it in the venomous version of gridlock that now grips Washington? Tell me it's not there in the feeling in this country that we are somehow besieged (no matter our specific politics), demobilized, and no longer have any real say in a political system of, by, and for the billionaires, in a Washington in which the fourth branch of government, the national security state, gets all the dough, all the tender loving care (except, at this moment, from our president), all the attention for keeping us “safe” from not much (and certainly not itself)? In the meantime, most Americans get ever less and have ever less say about what they’re not getting. No wonder in the last election the country’s despairing heartland gave a hearty orange finger to the Washington elite.

States of Failure

“Populist” is the term of the moment for the growing crew of Donald Trumps around the planet. It may mean “popular,” but it doesn’t mean “population”; it doesn’t mean “We, the People.” No matter what that band of Trumps might say, it’s increasingly not “we” but “them,” or in the case of Donald J. Trump in particular, “him.”

No, the United States is not yet a failed or failing state, not by a long shot, not in the sense of countries like Afghanistan, Iraq, Libya, Syria, and Yemen that have been driven to near-collapse by America’s twenty-first-century wars and accompanying events. And yet, doesn’t it seem ever easier to think of this country as, in some sense at least, a failing (and flailing) experiment?

It’s hard to look back on the last decades and not think that democracy has been sinking under the imperial waves. I first noticed the term “the imperial presidency” in the long-gone age of Richard Nixon, when his White House began to fill with uniformed flunkies and started to look like something out of an American fantasy of royalty. The actual power of that presidency, no matter who was in office, has been growing ever since. Whatever the Constitution might say, war, for instance, is now a presidential, not a congressional, prerogative (as is, to take a recent example, the imposition of tariffs on the products of allies on “national security” grounds).And don’t just blame it on Donald Trump. That’s the easy path to an explanation. Something had to go terribly wrong to produce such a president and his tweet-stormed version of America. That should seem self-evident enough, even to -- though they would mean it in a different way -- The Donald’s much-discussed base. After all, if they hadn’t felt that, for them, the American experiment was failing, why would they have voted for an obvious all-American con man? Why would they have sent into the White House someone whose Apprentice-like urge is to fire us all?

As Chalmers Johnson used to point out, in the Cold War years the president gained his own private army. Johnson meant the CIA, but in this century you would have to add America’s ever vaster, still expanding Special Operations forces (SOF), now regularly sent on missions of every sort around the globe. He’s also gained his own private air force: the CIA’s Hellfire-missile armed drones that he can dispatch across much of the planet to kill those he’s personally deemed his country’s enemies. In that way, in this century -- despite a ban on presidential assassinations, now long ignored -- the president has become an actual judge, jury, and executioner. The term I’ve used in the past has been assassin-in-chief.

All of this preceded President Trump. In fact, if presidential wars hadn’t become the order of the day, I doubt his presidency would have been conceivable. Without the rise of the national security state to such a position of prominence; without much of government operations descending into a penumbra of secrecy on the grounds that “We, the People” needed to be “safe,” not knowledgeable; without the pouring of taxpayer dollars into America’s intelligence agencies and the U.S. military; without the creation of a war-time Washington engaged in conflicts without end; without the destabilization of significant parts of the planet; without the war on terror -- it should really be called the war for terror -- spreading terrorism; without the displacement of vast populations (including something close to half of Syria’s by now) and the rise of the populist right on both sides of the Atlantic on the basis of the resulting anti-immigrant, anti-Muslim sentiments, it’s hard to imagine him. In other words, before he ever descended that Trump Tower escalator into the presidential race in 2015, empire had, politically speaking, trumped democracy and a flawed but noble experiment that began in 1776 was failing.

Had that imperial power not been exercised in such a wholesale way in this century, Donald Trump would have been unimaginable. Had President George W. Bush and his cronies not decided to invade Iraq, The Donald probably would have been inconceivable as anything but the proprietor of a series of failed casinos in Atlantic City, the owner of what he loves to call “property” (adorned with those giant golden letters), and a reality-TV host. And the American people would not today be his apprentices.

In other words, in the twenty-first century, Donald Trump is proof indeed that the American experiment in democracy may be coming to an unseemly end in a president with all the urges of an autocrat (and so many other urges as well). Or think of it this way: the contest -- from early on an essential part of American life -- between democracy and empire seems to be ending with empire the victor. However -- and here may be Donald Trump’s particular significance -- empire, too, looks to be heading toward some kind of ultimate failure. He himself is visibly a force for imperial demolition. He seems intent -- as in the recent abusive NATO meeting and the chaotic get-together with Russian President Vladimir Putin -- on dismantling the very world that imperial America built for itself in the wake of World War II. You know, the one in which it was to be the ultimate and eternal victor in a rivalry between imperial powers that had begun in perhaps the fifteenth century, reached its peak when only two “super” rivals were left to face each other in the Cold War, and ended with a single power seemingly triumphant and alone on planet Earth.When that “very stable genius” (as he reminded us again recently) inherited such powers long in the making, he also inherited the power to use them in ways that would have been unavailable to the president of a country that had genuine “checks and balances,” one in which the people knew what was going on and in some sense directed it. Consider it a sign of the times that he’s the second president to lose the popular vote in this 18-year-old century -- the first, of course, being George W. "Hanging Chad" Bush. So perhaps it’s only proper that President Trump has now nominated to the Supreme Court a judge who was once a Republican operative for the very legal team focused on stopping the recount of those contested Florida ballots in 2000 -- a recount the Supreme Court did indeed halt, throwing the election to Bush. Note that Brett Kavanaugh is also the perfect justice for America’s new imperial age of decline, one who genuinely believes that the law should read: the president, while in office, is above it. Think of him as Caligula’s future enabler.

How quickly those historically unique dreams of global dominion fell apart in the “infinite wars” of this century. Think of Donald Trump as the overly ripe fruit of that failure, that endless imperial moment that never quite was. Think of him as the daemon in the (malfunctioning) global machinery of a world that is itself -- as in Brexiting “Europe” -- evidently beginning to come apart at the seams amid war, a flood of global refugees, and one factor never experienced before (on which more below). Think of America as being caught up in some only half-recognized United Stexit moment, though what exactly we are withdrawing from may be less than clear.

Still, bad as any moment might be, you can always hope for, dream about, and work for so much better, as so many have over the centuries. After all, everything I’ve described remains the norm of history. What empire hasn’t had its Caligulas, its Trumps? What empire hasn’t, in the end, gone down? What democratic experiment hasn’t sooner or later faltered? Even the best of experiments come up short as autocrats take power and hand their rule on to their sons, only to be overthrown by some revolt, some new attempt to make better sense of this world, which itself falters sooner or later. And so it goes.

Again, that, as they say, is history, a series of failed experiments, but ones that always end, in their own fashion, with hope still alive for a better, fairer, juster world. Yes, a particular failure might be terrible for you, your community, even several generations of yous, but it, too, will pass and you can expect our better angels to reappear someday, even if not in your lifetime -- or at least until recently you could do so.

The Ultimate Experiment

There is, however, another experiment, a planet-wide one that seems to be failing as well. You could think of it as humanity’s experiment with industrial civilization, which is disastrously altering the environment of this previously welcoming world of ours. I’m referring, of course, to what the greenhouse gases from the fossil fuels we’ve been burning in such profusion since the eighteenth century are doing to our planet.

Whether you call it climate change or global warming, the one thing it isn’t -- despite the fact that we’ve done it -- is history. Not human history anyway. After all, its effects will exist on a time scale that dwarfs our own. If allowed to play out to its fullest, it could destroy civilization. And ironically enough, unlike so many of our experiments, this was one we didn’t even know we were conducting for something like a century and a half. So consider it an irony that it’s the one likely to endanger every other imaginable experiment. If not somehow halted in a reasonably decisive fashion, it could not only inundate coastal cities, turn verdant lands into parched landscapes, and create weather extremes presently hard to imagine, but produce heat that will be devastating.

And yet don’t give us any kind of a free pass on this one. Despite those endless years of not knowing what we were doing, ignorance can’t be pled. Increasing numbers of us (including the giant oil companies who did everything humanly possible to keep the news from the rest of us) have known about this since at least the 1960s. In 1965, President Lyndon Johnson’s science advisory committee sent him a report that highlighted a human-caused warming of the planet from the carbon dioxide burned off by fossil fuels. It included remarkably accurate projections of the increased heat to come in the twenty-first century and of other effects of climate change, including sea level rise and the warming of sea waters. So don’t say that no one was warned. As time went on, we’ve been warned again and again.

And for this, too, Donald Trump can’t be blamed, but his presence in the White House is now a powerful symbol of a human failure to grasp the dangers involved. Talk about a symbolic act of self-destruction: the American people put a fierce climate denier in the White House. He, in turn, has brought his passionate 1950s-style fantasies of an even more oil-fueled global future with him. He has, among other things, appointed a remarkable set of Republican climate-change doubters and deniers to crucial positions throughout his administration. He’s moved to withdraw this country from the Paris climate accord, while powering up fossil-fuel and greenhouse-gas-producing projects of every sort and weakening the drive to develop alternative energy sources; he has, that is, done everything in his power to stoke global warming.

Along with the actions of the CEOs of the giant oil companies, this will surely prove to be the greatest criminal enterprise in history, since it takes the all-time largest greenhouse gas emitter out of the running (except at the state and local level) when it comes to impeding global warming. In other words, whatever else he may be, President Donald Trump seems singularly intent on being a one-man wrecking crew when it comes to human history.

Since Lucy walked upright by that African lake three million years ago, this has been a remarkably welcoming planet for the human experiment. If, in the coming century, climate change hits full force, it won’t just be a matter of refugees in the hundreds of millions or individual deaths in countless numbers, or some failing democracy that became an empire. It could mean the failure of the whole human experiment in ways that are still hard to grasp. It could mean no more chance for failure, The End.

That’s something worth working against. That’s a failure no one in any possible future can afford.

In the meantime, here I am, another year closer to my own moment of “failure,” living in a potentially failing country on a potentially failing planet. Happy birthday to me.

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dn cdb

JUAN GONZÁLEZ: Last week, Supreme Court nominee Brett Kavanaugh submitted to the Senate his responses to a lengthy questionnaire as part of the confirmation process. Responding to a question about the 10 most significant cases over which he sat, Kavanaugh cited his dissenting opinion in White Stallion Energy Center v. EPA, in which he argued that the EPA must consider financial costs when deciding whether to regulate emissions from power plants. Kavanaugh wrote in the questionnaire, quote, “In my view, it was unreasonable—and therefore unlawful under the Administrative Procedure Act—for EPA not to consider the costs imposed by regulations in determining whether such regulations were 'appropriate and necessary.'” I’m wondering your thoughts on, if Judge Kavanaugh is confirmed for the Supreme Court, what the impact of this would be on environmental laws in the future.

KIERÁN SUCKLING: Well, it would be extraordinary. I mean, Trump has already had one appointee on the Supreme Court. If he gets the second, he will likely be able to control the whole judicial agenda for environmental protection in this country. And that’s incredibly important, because right now the strongest, most powerful force of resistance against Trump is our legal system. And that’s because virtually everything he wants to do is illegal. The people he’s put in place, like Zinke and Pruitt, to carry out his agenda have such disdain for governance. They don’t even know how to do governmental process properly, so they’re continually sued, they’re continually found guilty. And that’s keeping America on track, this independent judiciary. So, if Trump captures the Supreme Court, we’re going to find he’s got an open agenda to do whatever he wants. And so, it’s very, very dangerous and disheartening.

https://insideclimatenews.org/news/10072018/brett-kavanaugh-supreme-court-trump-nominee-climate-change-policy-environmental-law

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https://www.ecowatch.com/kavanaugh-supreme-court-environment-epa-2585783500.html

Environmental Stakes of Brett Kavanaugh's Supreme Court Nomination

When President Donald Trump announced Brett Kavanaugh as his pick to replace retiring Supreme Court Justice Anthony Kennedy on Monday, he picked the potential justice with the most environmental law experience of his final four frontrunners, E&E reported.

The announcement sent environmentalists and legal experts scouring through his more than 300 rulings on the D.C. Circuit Court to reveal a contradictory picture: Kavanaugh accepts the science behind climate change, but has ruled against the Environmental Protection Agency's (EPA) attempts to do anything about it.

"Judge Kavanaugh isn't anti-environmental, but he tends to be anti-agency," Michael Gerrard told Inside Climate News. Gerrard is the director of the Sabin Center for Climate Change Law at Columbia University. "He's often struck down regulation that he didn't think Congress had authorized explicitly enough."

In a 2012 case, for example, he dissented from a majority ruling upholding Obama-era attempts to limit greenhouse gas emissions, arguing Congress had not empowered the EPA to do so.

"The task of dealing with global warming is urgent and important," he wrote, according to The New York Times. But, despite that, he ruled the "EPA went well beyond what Congress authorized."

Kavanaugh's past rulings are particularly important because, if confirmed, he could have a major impact on the Supreme Court's environmental decisions. This is because Kennedy was a key swing vote on the issue.

In Massachusetts v. EPA, Kennedy broke a tie in ruling that the EPA could regulate greenhouse gases under the Clean Air Act, even though the act does not mention them explicitly, since it was written in the 1970s, before climate change was a major concern.

Kavanaugh's strict adherence to the letter of Congressional laws suggests to legal scholars he would have ruled differently.

"I think he would have decided against Massachusetts v. EPA," University of California Los Angeles environmental law professor Ann Carlson told The Atlantic. "Everything points to the direction of a very narrow construction of the Clean Air Act, and that will seriously limit the EPA's authority to regulate greenhouse gases in a way that makes a meaningful difference."

Kavanaugh decided against the EPA in three major cases involving the Clean Air Act during the Obama years, The Atlantic reported.

In one, E.M.E. Homer City Generation v. Environmental Protection Agency, he struck down the EPA's ability to regulate air pollution that passed from one state to another. The Supreme Court later overturned that decision, in a ruling Kennedy supported, according to The New York Times.

Kavanaugh has ruled in favor of environmental actions in some instances, however. In 2013, he ruled that it was legal for the EPA to revoke a mountaintop-removing mining permit in West Virginia, though he ruled against the EPA in a different legal argument involving the same case, according to The Atlantic.

In 2014, he also decided in favor of the Natural Resources Defense Council in a case challenging pro-industry policies for emissions from cement kilns, The New York Times reported.

Harvard law professor Richard J. Lazarus told The New York Times that Kavanaugh was not hostile to environmental laws per se, but that his approach might harm the environment as long as the legislative branch declines to pass new ones.

"Congress stopped making clean air laws after 1990, so the EPA has to work with increasingly tenuous statutory language. In effect, his approach to environmental law would make it harder to address current problems so long as Congress remains out of the lawmaking business," Lazarus said.

However, Kavanaugh's approach could also stymie the Trump EPA's attempts to deregulate independent of Congress.

"If he faces some Scott Pruitt-era rule that was kind of done quick and dirty, I don't think the administration should expect him to rubber-stamp it," Case Western Reserve University law professor Jonathan Adler told The Atlantic. "He doesn't grade federal agencies on a curve."

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https://www.propublica.org/article/who-is-brett-kavanaugh-a-supreme-court-reading-guide

Besides Gorsuch, Trump last year reportedly interviewed 3rd Circuit Judge Thomas Hardiman, 6th Circuit Judge Amul Thapar (Thapar at the time was a federal district judge; he later became Trump's first lower-court nominee), and 11th Circuit Judge William Pryor Jr.

Other judges considered frontrunners include DC Circuit Judge Brett Kavanaugh, a Kennedy clerk and a veteran of the George W. Bush administration; 6th Circuit Judge Raymond Kethledge, also a Kennedy clerk; and 7th Circuit Judge Amy Coney Barrett, a former law professor who was nominated and confirmed last year to the appeals court.

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https://insideclimatenews.org/news/28062018/justice-anthony-kennedy-retirement-environmental-laws-climate-change-case-massachusetts-v-epa-supreme-court

To see why environmentalists are panicking about who President Donald Trump may put in the Supreme Court seat being vacated by Justice Anthony Kennedy, just go back 11 years and read the two dissents in the landmark climate change case Massachusetts v. EPA.

Not the majority opinion, where Kennedy provided the fifth, swing vote compelling the Environmental Protection Agency to regulate greenhouse gases as pollutants under the Clean Air Act. In the opening words of the ruling, the liberal wing of the court, joined by Kennedy, embraced the science of climate change.

No, what sends shudders down the spines of environmental advocates is the way the deeply conservative minority saw things back then, spelled out in a pair of dissents—one written by Chief Justice John Roberts and the other by the late Justice Antonin Scalia, whose seat Trump filled last year with Neil Gorsuch. Both dissents were also joined by Justices Clarence Thomas and Samuel Alito.

The dissents are hostile to an expansive view of EPA's powers under the Clean Air Act, but more profoundly, they are out of step with the core scientific understanding of global warming

. Scalia's core beliefs, known as "textualism," which would see no climate role for the agency in charge of protecting the environment unless it is expressly spelled out in statute. Congress, especially under the control of Republicans, doesn't look likely to crack down on pollution from the use of fossil fuels, whatever the risks to society.

And it's a nightmare to think that a new majority on the court might turn it into a sounding board for outright climate denial.

'Pure Conjecture'?

Roberts started off his dissent by stating that he would render "no judgment on whether global warming exists, what causes it, or the extent of the problem." But his framing of the question of standing—the threshold test of whether Massachusetts and other states even had the right to press their case in court—was out of step with the science.

On coastal damages from sea level rise, an eventuality that is not just a risk but a certainty, readily observed and directly caused by the warming of ocean waters and the melting of ice masses due to rising carbon dioxide, Roberts wrote: "It is pure conjecture."

As for strengthening controls on the greenhouse gas emissions from new cars, one of the main sources of carbon pollution and the focus of the litigation, their tailpipe fumes played only a "bit-part" in causing the problem, he said.

His point was that to even get their day in court, plaintiffs had to prove that a specific harm to them (coastal damage) had to be right around the corner (not decades away) and had to be knotted to a single act of regulatory neglect (lax auto standards).

Not even justice should be that blind.

It is well established that sea level rise is just one of the myriad dangers presented to public health and the environment by the unregulated use of fossil fuels. In the context of climate science, a century is the blink of an eye. And the moment EPA ruled that CO2 was a dangerous pollutant, not only the science but the law tells the federal government to control emissions from all significant sources, not just new cars.

Next, take a look at the other dissent, written by Scalia—a judge who conservatives consider the archetype for the next nominee to the high court.

Most of it is taken up by Scalia's brand of textualism, a contorted, dictionary-driven defense of the notion that man-made carbon dioxide is not even pollution.

"Regulating the buildup of CO2 and other greenhouse gases in the upper reaches of the atmosphere, which is alleged to be causing global climate change, is not akin to regulating the concentration of some substance that is polluting the air," he wrote.

What This Could Mean for Future Rules

Five like-minded justices "could overturn Mass. v. EPA or, perhaps more likely, significantly curtail its reach," said one legal scholar, Ann Carlson at the UCLA law school.

"Justice Scalia had already begun to lay the groundwork for curtailing EPA's power to regulate greenhouse gases in a subsequent case, Utility Air Regulatory Group v. EPA," she wrote. (There, the court upheld EPA rules on some sources, but said the agency had overreached on others.)

"With a new Justice on the Court who opposes Mass. v. EPA, it isn't hard to imagine the Court imposing significant limitations on EPA's ability to regulate greenhouse gases," she went on. "If a Democrat were elected President in 2020 and attempted to reinstate something like the Clean Power Plan, for example, we could well see the Supreme Court strike such a rule down."

She found it "even more alarming" that Alito and Thomas wanted to undo Massachusetts at that point. "Add Justice Gorsuch and the new Justice, persuade Justice Roberts to join in, and Mass. v EPA is overturned."

Richard Lazarus of Harvard told The Atlantic that Kennedy's absence might affect environmental law across the board. "He's been on the court just over 30 years, and he's been in the majority in every single environmental case but one. You don't win without Kennedy," he said.

Without knowing the name of the next justice, it's hard to predict more, other than that the court that ultimately decides the fate of the Clean Power Plan will lean even more to the right than the one that, just before Scalia died, issued a stay of that regulation.

Ever since the stay was issued, the litigation has been in limbo, although it looks like judicial patience is running out at the U.S. Court of Appeals for the District of Columbia Circuit, which held oral arguments almost two years ago.

Judge Brett Kavanaugh and Climate Change

Among the judges on that appellate bench was Brett Kavanaugh, who is on everyone's short list, including Trump's, to replace Kennedy.

Here's one of his comments that day, as reported by The New York Times:

"The earth is warming," Kavanaugh said. "Humans are contributing. I understand the international impact and the problem of the commons. The pope's involved. And I understand the frustration with Congress."

But he echoed Chief Justice Roberts' thinking when he went on: "If Congress does this, they can account for the people who lose their jobs. If we do this, we can't."

If Kavanaugh becomes the nominee, those words would likely resonate with pro-coal senators like Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota, two of the nervous Democrats whose votes might be needed for his confirmation.

And knowing what a weak hand the greens hold in Congress, it's easy to see why climate activists are walking around with furrowed brows.