supreme court graphicNews and comment regarding the Supreme Court of the United States (SCOTUS) are shown below, with commentary also on major issues involving U.S. federal courts. The links to a sample of significant reports are drawn primarily from major national outlets or from those featuring specialized expertise. They are arranged in reverse chronological order. Included also are notable reports involving lower federal courts.

-- Andrew Kreig, J.D., M.S.L. / Justice Integrity Project editor

Note: Excerpts below are from the authors' words except for subheads and Editor's notes" such as this.




April 1

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Howe on the Court via SCOTUSblog, Courtroom access: The nuts and bolts of courtroom seating – and the lines for public access, Amy Howe, April 1, 2020. On an average argument day at the Supreme Court, there are 439 seats in the courtroom. Of those 439, only 50 – that is, just over 11 percent – are specifically set aside for members of the general public. The other 389 are divided among several different groups.

See sketch of the empty courtroom (Art Lien). The labels refers to: (A) justices’ bench, (B) clerk’s seats, (C) marshal’s seats, (D) arguing counsel tables, (E) press section, (F) justices’ box, (G) bar section and (H) public gallery. Overflow seats for press and the public are located between the columns on the left and behind the public gallery, and seats for court employees are located between the columns on the right.

The “public line”: The line to obtain one of the 50 public seats (the so-called “public line”) forms on the sidewalk in front of the court – on the right-hand side if you are facing the Supreme Court building, with the Capitol behind you across First Street. At around 7:30 on the morning of an argument, Supreme Court police officers begin to hand out at least 50, but sometimes more, tickets.

The press corps, the justices’ box and the clerks’ seats: On one side of the courtroom, perpendicular to the bench, 36 seats are allocated to members of the press. Across the courtroom on the other side, and also perpendicular to the bench, 37 seats are reserved for retired justices, the justices’ spouses and VIP guests (including Ivanka Trump and her daughter at one argument in 2017) and senior court officials. The justices’ law clerks have 27 seats in less desirable real estate farther back in the courtroom, on the same side as the justices’ box.

The “bar section” and the “bar line”: Between the press section and the justices’ box sits the “bar section”: 78 seats reserved for members of the Supreme Court bar. Although the Supreme Court bar is sometimes described as an elite fraternity, the requirements for membership are fairly simple: To be admitted, you must have stayed out of trouble while practicing law for at least three years, find two lawyers who have already been admitted to the bar to vouch for you, and pay a $200 fee. Once admitted, you can sign briefs and argue in the Supreme Court, but one of the best perks for most people is the seating. Although there are a lot of lawyers in Washington, it’s almost always still easier to get a seat in the bar section than in the public section.

Although there are 78 seats in the bar section, that doesn’t mean that the first 78 lawyers in the bar line will be guaranteed seats there. On days when the justices take the bench to hear oral arguments (as well as most non-argument sessions), they also admit new lawyers to the Supreme Court bar. Those lawyers are seated in the bar section without having to wait in line, as are the bar members who are moving their admission. On days when a lot of lawyers are being admitted, over half of the seats in the bar section may be taken before any of the tickets are handed out to regular bar members. But even if they don’t make it into the courtroom, bar members have a consolation prize that is not available to people waiting in the public line: They can sit and listen to the arguments in the lawyers’ lounge, a large room on the same floor as the courtroom where live audio is piped in over speakers.

The “three-minute line” : There are 25 seats set aside in the back of the courtroom for members of the public who wait in the “three-minute line,” which allows many people to cycle through the courtroom for three to five minutes at a time.

Reserved seats in the public sector: If you have been tallying up the seats as you read along, you know that there are still 186 seats unaccounted for. These are what are known as the “reserved” seats in the public section of the courtroom, which are overseen by the Marshal’s Office at the Supreme Court. The reserved seats are set aside for school groups, the guests of the newly admitted bar members (who get one seat each), the guests of the lawyers arguing that day (who get six seats each, unless the argument is divided, in which case they get four) and “guests of the court.” If any of these 186 seats are not being used for one of these categories, they are made available for the public line.


March 20

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SCOTUSblog, Analysis: What next for oral arguments? Tom Goldstein (SCOTUSblog founder and Supreme Court litigator), March 19, 2020. Having indefinitely postponed its March oral argument sitting, the Supreme Court will need to develop a plan for these cases and those in the April sitting too. There are 20 oral arguments in question: 11 for March and nine for April. Because there is little relevant precedent, there is no way to predict what the court will do. In this post, I lay out what seems most likely and sensible to me.

Note that the question of how to handle oral arguments is not enormously consequential to the justices. The public pays a lot of attention to the court’s public sessions—including arguments—because they are the most visible parts of the court’s work. But they are the tip of the iceberg; almost everything is going on out of sight, below the surface. The court continues to process new cases and write opinions deciding existing cases, largely uninterrupted by the virus.

With respect to oral arguments, my premise is that it will not be possible for the court to hold its April sitting — at least as traditionally conducted. The current CDC guidance is that there should not be events of 50 or more people until at least early May.

supreme court buildingI think the court will postpone ordinary public arguments for longer than that. The virus is a distinct threat to the health of the justices, because it is most dangerous for people aged 60 and older. It is extremely dangerous for those aged 80 and over who have prior medical conditions. More broadly, holding oral arguments creates risks for the court’s staff and the advocates.

For most of the March and April cases, the court does not need to take any risks. It has a strong preference for holding oral argument, and for doing so in monthly sittings from October through April. But these are not ordinary times, and no statute or rule requires it to do so.

The court could go ahead and resolve roughly one third of the March and April cases without oral arguments. In cases that appear to be unanimous and in which no justice requests argument, it could prepare opinions. If it became apparent during the drafting process that oral argument would be useful, the case could then be heard next term.

There are four cases — raising two issues — in which the court is likely to conclude that oral argument is necessary and cannot be deferred so long. Two are the presidential tax return cases. (Technically, they are three cases, Nos. 19-635, 19-715 and 19-760, scheduled for two arguments.) Those have direct implications for ongoing congressional investigations of the president and an ongoing grand jury investigation.

The other two are the so-called “faithless electors” cases (Nos. 19-465 and 19-518). (These were originally scheduled for one hour of argument, but now are set for two because of the recusal of Justice Sonia Sotomayor from No. 19-518.) Those have direct implications for the 2020 presidential election, because they involve voting in the electoral college.

These four cases will require the court to navigate serious concerns of public health, the justices’ own health and the public’s access to the court’s proceedings. Here, I think the court is likely to hold oral arguments in April or May, but under unique and stringent procedures required by the circumstances.

The arguments in all four cases could be held on a single day: one set in the morning, and another in the afternoon. The public and the bar would be excluded. The core press corps — so-called “hard pass” holders — would be seated in the public section, separated consistent with “social distancing.” The table from which counsel argue would be moved several feet farther back from the bench. The audio would be released promptly after the argument, consistent with past practice in certain high-profile cases.

By May, testing kits for the virus should certainly be available for the justices and their essential staff. Even then, some members of the court may exercise their judgment not to attend the arguments. They would review the tape or transcript of the arguments instead. This would be consistent with past practice for health-related absences — for example, while Justice Ruth Bader Ginsburg was recently recovering from surgery.

March 16

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ny times logoNew York Times, McConnell Has a Request for Veteran Federal Judges: Please Quit, Carl Hulse, March 16, 2020. Senator Mitch McConnell has encouraged judges thinking about stepping down to do so soon to ensure that Republicans confirm their replacements.

Running out of federal court vacancies to fill, Senate Republicans have been quietly making overtures to sitting Republican-nominated judges who are eligible to retire to urge them to step aside so they can be replaced while the party still holds the Senate and the White House.

Senator Mitch McConnell, Republican of Kentucky, who has used his position as majority leader to build a judicial confirmation juggernaut for President Trump over the past three years, has been personally reaching out to judges to sound them out on their plans and assure them that they would have a worthy successor if they gave up their seats soon, according to multiple people with knowledge of his actions.

It was not known how many judges were contacted or which of them Mr. McConnell had spoken to directly. One of his Republican colleagues said others had also initiated outreach in an effort to heighten awareness among judges nominated by Presidents Ronald Reagan, George Bush and George W. Bush that making the change now would be advantageous.

The overt effort by Republicans to create vacancies reflects a realization that Mr. Trump could lose the presidency, or that Republicans could lose the Senate majority and deprive Mr. Trump of his partner on judicial confirmations even if he did gain a second term.

Mike Davis, a former nomination counsel for Senate Republicans who created the Article III Project, a conservative judicial advocacy group, said that he still expected Mr. Trump to win, but that “we have to hope for the best and plan for the worst.”

Republicans are reminding the judges that it could be another eight years — 2029 — before they could leave under a Republican president.

Mr. Davis estimated that judges would need to decide by late summer or early fall to provide sufficient time for a nomination and confirmation.

According to a tally by the Article III Project, more than 90 judges nominated by the three previous Republican presidents are either now eligible or will become eligible this year to take what is known as senior status, a form of semiretirement that enables their slots to be filled even though they can still hear cases, hire clerks and receive full pay.

Twenty-eight of them are judges on the influential appeals courts, which have been a particular focus of the alliance between the Trump White House and Senate Republicans. One of them, Judge Thomas B. Griffith of the U.S. Court of Appeals for the District of Columbia Circuit, announced last week that he planned to retire in September, giving Mr. Trump the opportunity to make a third appointment to the powerful court in what will most likely be a contentious confirmation fight.

March 14

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ny times logoNew York Times, A Conservative Agenda Unleashed on the Federal Courts, Rebecca R. Ruiz, Robert Gebeloff, Steve Eder and Ben Protess, March 14, 2020. President Trump’s imprint on the nation’s appeals courts has been swift and historic. He has named judges with records on a range of issues important to Republicans — and to his re-election.

As a Republican candidate for the Texas Supreme Court, Don R. Willett flaunted his uncompromising conservatism, boasting of endorsements from groups with “pro-life, pro-faith, pro-family” credentials.

“I intend to build such a fiercely conservative record on the court that I will be unconfirmable for any future federal judicial post — and proudly so,” a Republican rival quoted him telling party leaders.

Judge Willett served a dozen years on the Texas bench. But rather than disqualifying him, his record there propelled him to the very job he had deemed beyond reach. President Trump nominated him to a federal appeals court, and Republicans in the Senate narrowly confirmed him on a party-line vote.

As Mr. Trump seeks re-election, his rightward overhaul of the federal judiciary — in particular, the highly influential appeals courts — has been invoked as one of his most enduring accomplishments. While individual nominees have drawn scrutiny, The New York Times conducted a deep examination of all 51 new appellate judges to obtain a collective portrait of the Trump-populated bench.

The review shows that the Trump class of appellate judges, much like the president himself, breaks significantly with the norms set by his Democratic and Republican predecessors, Barack Obama and George W. Bush.

republican elephant logoThe lifetime appointees — who make up more than a quarter of the entire appellate bench — were more openly engaged in causes important to Republicans, such as opposition to gay marriage and to government funding for abortion.

They more typically held a political post in the federal government and donated money to political candidates and causes. Just four had no discernible political activity in their past, and several were confirmed in spite of an unfavorable rating from the American Bar Association — the first time that had happened at the appellate level in decades.

Two-thirds are white men, and as a group, they are much younger than the Obama and Bush appointees.

Once on the bench, the Trump appointees have stood out from their fellow judges, according to an analysis by The Times of more than 10,000 published decisions and dissents through December.

When ruling on cases, they have been notably more likely than other Republican appointees to disagree with peers selected by Democratic presidents, and more likely to agree with those Republican appointees, suggesting they are more consistently conservative. Among the dozen or so judges that most fit the pattern, The Times found, are three Mr. Trump has signaled were on his Supreme Court shortlist.

While the appellate courts favor consensus and disagreement remains relatively rare — there were 125 instances when a Trump appointee wrote the majority opinion or dissent in a split decision — the new judges have ruled on disputed cases across a range of contentious issues, including abortion, immigration, L.G.B.T. rights and lobbying requirements, the examination shows.

One new judge, who had held a political job in the Trump administration, dissented on an issue of particular importance to the president: disclosure of his financial records. The judge, Neomi Rao, opposed a decision requiring the release of the documents to a congressional committee, a mandate the president continues to resist and is now before the Supreme Court.

“They have long records of standing up, and they’re not afraid of being unpopular,” said Carrie Severino, president of the Judicial Crisis Network, a conservative advocacy group that has pushed for the mold-breaking appointments. Ms. Severino once served as a law clerk for Justice Clarence Thomas, one of the Supreme Court’s most reliably conservative members.

Stephen B. Burbank, a law professor at the University of Pennsylvania, said Mr. Trump’s appointments reflected attempts by recent presidents to draw the federal judiciary — a constitutionally independent branch of government — into policy debates more appropriate in Congress and the White House.

“The problem as I see it is not that judges differ ideologically — of course they do — nor is it that a Republican president would look for someone with congenial ideological preferences,” Mr. Burbank said. “It’s that in recent decades the search has been for hard-wired ideologues because they’re reliable policy agents.”

  • New York Times, These 51 judges were named by Mr. Trump.
  • New York Times, Here are five takeaways from our examination on how Mr. Trump has reshaped the federal judiciary.

March 13

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Slate, Former Judge Resigns From the Supreme Court Bar, Dahlia Lithwick, March 13, 2020. In a letter to Chief Justice John Roberts, he detailed why he’s lost faith in the court.

James Dannenberg is a retired Hawaii state judge. He sat on the District Court of the 1st Circuit of the state judiciary for 27 years. Before that, he served as the deputy attorney general of Hawaii. He was also an adjunct professor at the University of Hawaii Richardson School of Law, teaching federal jurisdiction for more than a decade. He has appeared on briefs and petitions as part of the most prestigious association of attorneys in the country: the Supreme Court Bar. The lawyers admitted to practice before the high court enjoy preferred seating at arguments and access to the court library, and are deemed members of the legal elite. Above all, the bar stands as a sprawling national signifier that the work of the court, the legitimacy of the institution, and the business of justice is bolstered by tens of thousands of lawyers across the nation.

On Wednesday, Dannenberg tendered a letter of resignation from the Supreme Court Bar to Chief Justice John Roberts. He has been a member of that bar since 1972. In his letter, reprinted in full below, Dannenberg compares the current Supreme Court, with its boundless solicitude for the rights of the wealthy, the privileged, and the comfortable, to the court that ushered in the Lochner era in the early 20th century, a period of profound judicial activism that put a heavy thumb on the scale for big business, banking, and insurance interests, and ruled consistently against child labor, fair wages, and labor regulations.

The Chief Justice of the United States

Washington, D.C. 20543

March 11, 2020

Dear Chief Justice Roberts (right):

john roberts oI hereby resign my membership in the Supreme Court Bar.

This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.

I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.

Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.

It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.

I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.

The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.

I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.

Please remove my name from the rolls.

With deepest regret,

James Dannenberg

March 12

ny times logoNew York Times, Opinion: The Supreme Court’s Fictional Middle Ground on Abortion, Linda Greenhouse, right, March 12, 2020 (print ed.). There is no such thing. linda greenhouse thumb CustomFollowing last week’s argument in a Louisiana abortion case, the consensus among attentive Supreme Court-watchers is that the outcome depends on Chief Justice John Roberts, who seemed not to share Justice Samuel Alito’s visceral dislike of abortion clinics and his deep suspicion of doctors who work in them. I agree.

Further, many of these close observers came away believing that even if the justices rule for Louisiana, they will take neither of the two drastic steps being pressed on the court by the state and its White House ally: to reject four decades of settled law under which doctors can challenge abortion restrictions on their patients’ behalf, or to overturn the 2016 decision that struck down the same admitting-privileges requirement in Texas that Louisiana is now defending.

I agree with that prediction as well. The chief justice seemed to be probing for ways within the framework of the 2016 decision that Louisiana might be different from Texas, either because of a more persuasive rationale for requiring clinic doctors in Louisiana to have hospital admitting privileges or because the requirement imposes a lesser obstacle to abortion access in Louisiana than it did in Texas.

So why do I think that anyone who cares about preserving women’s access to abortion should be seriously worried? Wouldn’t a state-specific win for Louisiana, one that left existing precedents on the books, represent a reprieve from looming disaster, a moderate place for this conservative court to land, however tentatively or temporarily?

The answer to that question is an emphatic “no.”

When it comes to the abortion landscape, there is no distinction that matters between Texas and Louisiana. There is not the shadow of a doubt that these laws were enacted not to protect women’s health, but to destroy the medical infrastructure that enables women to exercise their constitutional right to terminate a pregnancy.

March 7

The Atlantic, Trump Is Counting on the Supreme Court to Save Him, David Frum, March 7, 2020. The president’s remarkable lawsuit against his own accountants and bankers can succeed only if the conservative majority intervenes on his behalf.

Sometime before June 29, 2020, the U.S. Supreme Court will either plunge the United States into the severest constitutional crisis of the Trump years — or save Americans from that crisis.

Three different committees of Congress, as well as New York State prosecutors, have issued subpoenas to President Donald Trump’s accountants and bankers for his tax and business records. Trump has sued to stop the accountants and bankers from complying. He has lost atlantic logo horizontaltwice at the district-court level and twice at the appeals-court level. Now he is looking to the conservative majority on the Supreme Court to rescue him.

On March 31, the court will hear oral arguments in the cases of Trump v. Mazars and Trump v. Deutsche Bank. The decision will be rendered sometime between then and the court’s summer break.

Although Trump is suing his accountants and his bankers as a private citizen, his case has been joined by the Department of Justice. Solicitor General Noel Francisco has signed an amicus brief on behalf of the United States. It is an astonishing document. It invites the Supreme Court to junk two centuries of precedent — and to substitute an entirely new system of judicial review of congressional subpoenas that involve a president.

A legislative subpoena must therefore satisfy heightened requirements when it seeks information from the President.

At the threshold, the full chamber should unequivocally authorize a subpoena against the President. Moreover, the legislative purpose should be set forth with specificity. Courts should not presume that the purpose is legitimate, but instead should scrutinize it with care. And as with information protected by executive privilege, information sought from the President should be demonstrably critical to the legislative purpose. A congressional committee cannot evade these heightened requirements merely by directing the subpoena to third-party custodians, for such agents generally assume the rights and privileges of their principal, as this Court has recognized in analogous cases.

supreme court graphicAll the requirements in that above paragraph were devised for purposes of this litigation.

None of them has ever been enforced — none of them has ever been imagined — in the previous 230 years of skirmishing between Congresses and presidents. Every must and should and cannot was invented in this very brief, for the immediate legal purposes of this president in this dilemma. The solicitor general might as well have said that subpoenas must be delivered by a sled pulled by flying reindeer, for all the connection between these demands and the previous constitutional history of the United States.

As the House of Representatives noted in the brief it filed, previous Congresses have obtained the bank records of Presidents Andrew Johnson and Jimmy Carter, and the tax records of President Richard Nixon. They have read the diaries of President Ronald Reagan and the law-firm billing records of first lady Hillary Clinton.

It’s never before been the law that a subpoena of the president must be authorized by “the full chamber,” much less that this authorization be “unequivocal” — whatever that means.

It’s never before been the law that the president’s privileges — whatever they are — also extend to his private business agents.

It’s never before been the law that the courts set themselves over Congress as scrutinizers of its subpoenas, approving or disapproving. Until now, instead, courts have always extended the utmost deference to congressional investigations, from the first Washington administration onward.

The Trump administration cannot cite case law for any of its new demands. It quotes few cases, very briefly and tangentially, and strikingly often with ellipses in the middle of the quote. Instead, it bases its argument on its own vision of the awesome and unassailable power of the presidency. “The President faces a unique risk of harassment in response to his official policies or actions,” his lawyers argue. To heighten that risk, they quote the 1952 case involving President Harry Truman’s seizure of steel plants during the Korean War: “In drama, magnitude and finality [the president’s] decisions so far overshadow any others that almost alone he fills the public eye and ear.” They continue, this time quoting the Supreme Court’s language in the Paula Jones lawsuit against President Clinton: “Likewise, the President ‘occupies a unique office with powers and responsibilities so vast and important that the public interest demands he devote his attention to his public duties.’”

The history-minded reader will recall that Truman lost the steel-seizure case, and that Clinton likewise lost his fight to be immune from civil liability for sexual harassment. Oftentimes, such effusive compliments to the office of the presidency in the language of a Supreme Court decision serve as consolation prizes for some rebuffed claim of presidential power. But Trump’s Department of Justice deploys the compliments as if they constituted the law itself, not the wrapping paper around the law.

The House brief hits back with actual precedents from pertinent law—and this bottom line: “In more than twenty cases concerning the scope of Congress’ power to investigate, this Court has only once held that a Congressional inquiry exceeded its constitutional limits.” That case—Kilbourn v. Thompson—dated from 1880 and dealt with the aftermath of the bankruptcy of a big bond house, J. Cooke and Sons. And even that case was effectively overruled in 1962. “At most,” the Supreme Court said, “Kilbourn is authority for the proposition that Congress cannot constitutionally inquire ‘into the private affairs of individuals who hold no office under the government’ when the investigation ‘could result in no valid legislation on the subject to which the inquiry referred.’” But otherwise, as the Supreme Court held in 1951, for a court “to find that a committee’s investigation has exceeded the bounds of legislative power it must be obvious that there was a usurpation of functions exclusively vested” elsewhere.

All told, the record supports the dry opening of the House brief: “Many momentous separation-of-powers disputes have come before this Court,” it reads. “This dispute, regarding four document subpoenas to third parties for records not covered by any privilege, is not one of them.” The only thing remarkable about the Mazars and Deutsche Bank cases, the House adds, “is the extraordinary breadth of the arguments that President Trump and the Solicitor General make about the supposed power of a President to thwart investigations in furtherance of Congress’s Article I legislative and oversight functions."

By all rights, these cases should end in the kind of defeat for Trump nicely described by a favorite joke of Chief Justice John Roberts. When asked how a certain case could have been decided against a petitioner 9–0, Roberts is said to have replied: “You must remember, there are only nine justices on the Supreme Court.”

But this is the Trump era. The courts are partisan and getting more so. Although Trump lost every previous round of this litigation, one appellate judge did agree with him on the merits: his own appointee to the D.C. Circuit, Neomi Rao.

In her dissent from the majority opinion against Trump, Rao advanced an arresting new claim: “When Congress seeks information about the President’s wrongdoing, it does not matter whether the investigation also has a legislative purpose … Allegations that an impeachable official acted unlawfully must be pursued through impeachment … [and] cannot be investigated by Congress except through impeachment.”

This is wild talk that would shut down almost all congressional investigations. It asks that Congress decide whether an act was unlawful before it begins its investigation of that act. It’s an argument that cannot be applied in real life — and is probably not meant to be applied in real life beyond this one and only application: shutting down an unwanted investigation of President Trump.

Plainly, there is something in those documents that Trump dreads letting the world see. We now seem on track to one of three possible outcomes of this dispute.

The first is that precedent and law prevail. Trump loses his lawsuit against his accountants and bankers, and the subpoenaed documents are surrendered to Congress.

The second is that the political imperative to save Trump that swayed Rao will sway the conservative justices on the Supreme Court — and that Trump’s secrets will be protected by a 5–4 decision.

The third is that Trump loses — but continues to devise new delays to thwart the subpoenas and defy not only Congress but also the courts.

Every one of these possible outcomes leads to explosive controversy in the summer before the 2020 election.

In the first case, we are surely plunged into a screaming hurricane of Trump scandals.

In the second, the legitimacy of the Supreme Court will be called into doubt in a way not seen in decades, if ever.

And in the third, we confront a full-blown crisis of the rule of law.

Under all three scenarios, the issues raised by impeachment in early 2020 come roaring back for the election finale. Trump’s evident corruption, the questions over his thralldom to the Putin regime in Russia, the refusal of the Republican Party to uphold law when inconvenient to Trump — you thought we’d talked them to death during impeachment? There is so much more to come.

March 5

washington post logoWashington Post, Commentary: Why you should care about the Chuck Schumer-John Roberts dustup, Aaron Blake, March 5, 2020. Schumer told two Supreme Court justices they would “pay the price” and “you won’t know what hit you” if they rule the wrong way. And then he suggested the chief justice is acting politically.

Perhaps we’re past the moment where Supreme Court justices will be viewed as anything other than political pawns. But that’s an extraordinary state of affairs.

The chief justice of the United States and the highest-ranking Senate Democrat got into a war of words Wednesday that epitomized how the relationship between our legislative and judicial branches has taken a severe turn for the worse.

Senate Minority Leader Charles E. Schumer (D-N.Y.) early in the day warned Supreme Court Justices Brett M. Kavanaugh and Neil M. Gorsuch “you will pay the price” and “you won’t know what hit you” if they rule against reproductive rights.

john roberts oThat prompted a highly unusual rebuke from Chief Justice John G. Roberts Jr., right, who called Schumer’s comments “dangerous.”

“Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous,” Roberts said.

Roberts rebukes Schumer over comments that Kavanaugh, Gorsuch will ‘pay the price’

Schumer’s office then shot back by suggesting that Roberts wasn’t being fair in his public comments and had sided with Republicans.

“For Justice Roberts to follow the right wing’s deliberate misinterpretation of what Sen. Schumer said, while remaining silent when President Trump attacked Justices [Sonia] Sotomayor & [Ruth Bader] Ginsburg last week, shows Justice Roberts does not just call balls and strikes,” Schumer spokesman Justin Goodman said, referring to Roberts saying in his confirmation hearing that he felt a judge’s role was to call balls and strikes.

Goodman previously issued a statement suggesting that Schumer’s comments had been blown out of proportion and that he meant the justices would be met with a political movement if they vote the wrong way. “It’s a reference to the political price Republicans will pay for putting them on the court and a warning that the justices will unleash a major grass-roots movement on the issue of reproductive rights against the decision,” Goodman said.

That explanation is eminently plausible, but even it speaks to the political and judicial moment we’re in. And you could even argue it’s a “threat” of one sort or another.

washington post logoWashington Post, Schumer says he misspoke in remarks directed at 2 Supreme Court justices, defends abortion rights, John Wagner, March 5, 2020.
The comments from Senate Minority Leader Charles E. Schumer (D-N.Y.) came amid outrage about his remarks about Justices Brett Kavanaugh and Neil Gorsuch that Chief Justice John G. Roberts Jr. had called “dangerous.”

“I should not have used the words I used yesterday. They didn’t come out the way I intended them to,” Schumer told Senate colleagues Thursday. “I’m from Brooklyn. We speak in strong language. I shouldn’t have used the words I did, but in no way was I making a threat. I never — never — would do such a thing.”

Schumer said he was expressing frustration that Republicans are trying to use the courts to restrict abortion rights in a fashion that they cannot accomplish in Congress.

March 4

supreme court headshots 2019

washington post logoWashington Post, Roberts rebukes Schumer for saying justices will ‘pay the price’ for a vote against abortion rights, Robert Barnes and Colby Itkowitz, March 4, 2020. Schumer to Gorsuch, Kavanaugh: ‘You will pay the price.’

Chief Justice John G. Roberts Jr. issued a rare rebuke of a sitting member of Congress on Wednesday, chastising the Senate’s top Democrat, Minority Leader Charles E. Schumer, for saying at a rally outside the Supreme Court that President Trump’s two nominees to the court would “pay the price” for a vote against abortion rights.

In a highly unusual statement issued by the court, the chief justice recounted comments Schumer (N.Y.) had directed at Neil M. Gorsuch and Brett M. Kavanaugh and said: “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All members of the court will continue to do their job, without fear or favor, from whatever quarter.”

Schumer, speaking to abortion rights supporters Wednesday morning as the Supreme Court heard arguments in an important abortion case from Louisiana, called out the two by name.

“I want to tell you, Gorsuch; I want to tell you, Kavanaugh: You have released the whirlwind, and you will pay the price,” Schumer said. “You won’t know what hit you if you go forward with these awful decisions.”

The whirlwind was just beginning. Pugilistic Republicans and Democrats raced from their respective corners, led by the president, who wrote on Twitter: “This is a direct & dangerous threat to the U.S. Supreme Court by Schumer. If a Republican did this, he or she would be arrested, or impeached. Serious action MUST be taken NOW!”

Later, Trump tweeted about the matter again with a threat similar to the one Schumer was being criticized for making.

“He must pay a severe price for this!” Trump wrote.

The GOP denounced Schumer and criticized the media for what they said was a lack of outrage. Democrats demanded to know why Roberts had not spoken out last week when Trump singled out liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor for criticism, or why he did not defend the federal judge Trump denounced for her oversight of the trial of the president’s friend Roger Stone.

The episode underscored the partisan politics that have engulfed the fight over the judiciary, which is supposed to be the nonpartisan branch of the government.

On the left, Brian Fallon of the liberal nonprofit organization Demand Justice, said: “It takes a certain amount of chutzpah for John Roberts to condemn these comments by Chuck Schumer after saying nothing when President Trump attacked two Democratic-appointed justices just last month.”

Schumer’s remarks came during the circuslike atmosphere that plays out in front of the Supreme Court whenever it hears a controversial case, especially abortion. As protesters from both sides of the issue crowded the sidewalk, Schumer spoke to abortion rights supporters.

After his comments in which he said Gorsuch and Kavanaugh would “pay the price,” Schumer added: “We will tell President Trump and Senate Republicans who have stacked the courts with right-wing ideologues that you’re going to be gone in November, and you’ll never be able to do what you’re trying to do now ever, ever again. You hear that over there on the far right? You’re gone in November.”

March 3

washington post logoWashington Post, Abortion case out of Louisiana a first test for Trump’s Supreme Court justices, Robert Barnes, March 3, 2020. The Supreme Court's next big abortion challenge comes from here in Louisiana. If the state's politicians had their way, so would the one after that. And also the one after that, until Roe v. Wade was no longer the law of the land.

Since the Supreme Court’s 1973 ruling protecting a woman’s constitutional right to abortion, no state has passed more restrictions on the procedure, a new national study shows: 89 and counting.

A repopulated and more conservative Supreme Court on Wednesday will consider one of those Louisiana laws, and some politicians here wonder if it might be the breakthrough they’ve been waiting for in a decades-long effort to rid the state, and the nation, of abortion.

March 2

supreme court headshots 2019 via Project On Government Oversight (POGO), Advocacy: Simple Reforms to Improve Transparency and Public Trust in the Federal Judiciary, Dylan Hedtler-Gaudette and Anthony Marcum, March 2, 2020. The federal courts are again under a political microscope. The impeachment pogo logo squaresaga placed Chief Justice Roberts at the heart of politics, the president recently accused the federal judge overseeing the Roger Stone case of bias and a recent congressional hearing highlighted serious harassment claims against a late circuit court judge.

At the Supreme Court, justices this term are considering a number of politically contentious topics, including the possible fate of the Deferred Action for Childhood Arrivals program, Second Amendment rights, abortion restrictions and public aid for religious schools.

The public is best served when it has access to each branch of its government. The judiciary is no exception.

Regrettably, these very public disputes are too often heard in very private forums. Many courts — including the Supreme Court — lack sufficient public access. Seating is limited. Audio of arguments is difficult to obtain. Accessing courts records is arduous and expensive. Consequently, a locked-out public is forced to rely on secondhand information about the judiciary that is often inaccurate or, worse, purposefully misleading. This sort of judicial hearsay, combined with the federal court’s resistance to greater transparency, creates unnecessary cynicism about the courts and judges themselves.

These problems are self-inflicted wounds. Congress has largely let the federal judiciary dictate its own transparency rules, with little success. But on Friday, Congress has introduced legislation designed to improve transparency and public trust in the courts. In an era of political ill will, these simple, bipartisan reforms could not come at a better time.

The legislation, titled the Twenty-First Century Courts Act, implements several commonsense changes. The first change is the simplest: The act would make it easier for the public to view important court proceedings. Under the proposed law, public appellate court hearings will have audio livestreamed on the internet. This change would have the most impact for the Supreme Court. Currently, unless you are one of the lucky few to wait in line for hours for the chance to grab a ticket to view the proceedings live, you are left only with a transcript, which is not released until later in the day. If you want to listen to Supreme Court hearings, you must wait until the end of the week when recordings are released.

It makes little sense that the highest court in the land — whose decisions cannot be appealed and impact the entire country — is also the least accountable.

Livestreamed hearings offer numerous benefits. They give the public unfiltered access to a courtroom whose decisions have the potential to affect nearly every corner of society. They would also make plain the seriousness and respect judges have for both the complex issues before them and their colleagues. These benefits would build public confidence in and understanding of the judiciary, a universally supported outcome that reflects the goal of several bipartisan reforms proposed in prior Congresses.

But appellate courts are not the only courts to see positive changes from this legislation. The bill also tackles the outdated, inefficient and costly Public Access to Court Electronic Records (PACER) system.

The current system — used by both federal trial and appellate courts — typically charges users 10 cents per page to download and view online public court filings. This paywall often prevents researchers and the public from accessing public filings. The Twenty-First Century Courts Act would make PACER free for nearly all users. It would also require the courts to update the online system to make it easier to search for documents. These changes — previously supported by members of Congress across the aisle — represent another important step to improving judicial transparency.

In addition to these long-needed transparency measures, the bill would direct the Supreme Court to write and make publicly available a code of conduct that the nine justices would abide by, similar to the Code of Conduct for United States Judges to which all other judges are accountable. Finally, the bill would modernize the financial disclosure system for federal judges by requiring that those disclosures be posted online, as the disclosures of members of Congress are, and would require brief explanations for recusal decisions made or not made by federal judges.

These measures would go a long way toward boosting public trust in the courts and, by extension, safeguarding the legitimacy of the decisions made by judges of those courts. These commonsense, pro-transparency and pro-accountability measures have the added virtue of being previously introduced through both Republican and Democratic bills as recently as the last Congress.

The public is best served when it has access to each branch of its government. The judiciary is no exception. Easier access to live hearings and publicly available court records, in addition to disclosure requirements and basic ethics rules similar to those followed by most federal judges, would go far to enhance public trust and forestall other, more drastic reforms to the federal judiciary.


Feb. 26

supreme court 2018 group photo cropped Custom

washington post logoWashington Post Magazine, Can the Supreme Court learn to speak up for itself? David Fontana and Christopher Krewson, Feb. 26, 2020. The judiciary is under attack. Maybe it’s time the justices finally figured out how to defend the rule of law in the court of public opinion.

Attention is the currency of our contemporary political life, and two of our three branches of government are constantly printing that currency. President Trump has tens of millions of Twitter followers; Rep. Alexandria Ocasio-Cortez and other congressional Democrats have successfully projected their voices into the public debate. For politicians in both of these branches, doing their job means speaking out — and being heard.

The third branch of the federal government, headed by the Supreme Court, has always been different. The justices are constantly speaking, but in the dry and long language of the law, a language that is hard for anyone to hear in the age of social media. There has generally been little objection to this relative silence. The legal expertise that judges bring to judging was supposed to speak for itself.

  •  Washington Post, Opinion: Trump made a baseless attack on two Supreme Court justices. Here’s why, George T. Conway III

Media, Politics & Public Health

washington post logoWashington Post, Perspective: Media outlets help Trump push a dangerous, false spin on coronavirus, Margaret Sullivan, right, March 1, 2020. Journalists margaret sullivan 2015 photoneed a new approach for tackling the president’s claims if they don’t want to be complicit in pushing propaganda.

Among the many outlandish statements President Trump has made since taking office, one in particular stands out for me.

Speaking in Kansas City, Mo., in the summer of 2018, he urged the attendees of the VFW annual convention to ignore the journalism of the mainstream media.

“Just stick with us, don’t believe the crap you see from these people, the fake news,” he said. “What you’re seeing and what you’re reading is not what’s happening.”

In other words, if you didn’t hear from me or my minions, it isn’t true.

Chico Marx memorably expressed a similar idea in the 1933 comedy “Duck Soup”: “Who ya gonna believe — me or your own eyes?”

It’s a dumbfounding notion, especially given Trump’s proven propensity for lies and falsehoods. But now as a deadly disease, the coronavirus, threatens to turn into a full-blown pandemic, it’s not simply bizarre in a way that can be easily shrugged off. It’s not just Trump being Trump.


Feb. 25

washington post logosonia sotomayor in scotus robe1Washington Post, Trump criticizes Sotomayor, Ginsburg in tweets, seeks their recusal from ‘Trump-related’ cases, Meagan Flynn, Feb. 25, 2020. President Trump went after Supreme Court Justices Sonia Sotomayor and Ruth Bader Ginsburg in a pair of tweets late Monday night, days after Sotomayor, right, issued a dissent critical of both the Trump administration’s legal strategy and the court’s majority for enabling it.

Tweeting just before appearing in a welcome ceremony at the Indian ceremonial president’s residence in New Delhi, Trump cited a Laura Ingraham segment on Fox News titled, “Sotomayor accuses GOP-appointed justices of being biased in favor of Trump.” He then called on Sotomayor and also Ginsburg to recuse themselves in “all Trump, or Trump related, matters!”

“Trying to ‘shame’ some into voting her way?” Trump said of Sotomayor. “She never criticized Justice Ginsberg [sic] when she called me a ‘faker'. Both should recuse themselves on all Trump, or Trump related matters! While ‘elections have consequences’, I only ask for fairness, especially when it comes to decisions made by the United States Supreme Court!"

supreme court headshots 2019

Palmer Report, Opinion: Donald Trump tips off how worried he is about what’s coming next, Bill Palmer, Feb. 25, 2020. Donald Trump is surely the world’s worst poker player. For all his erratic behavior, he can be consistently relied upon to give away what he’s really thinking. For instance, late last night he posted this Twitter thread which seems on the surface to be yet another aggressive abuse of power, but is instead actually a telltale sign of what he’s worried about most:

bill palmer report logo headerTo be clear, this is utterly deranged and profoundly corrupt on Donald Trump’s part. He’s trying to intimidate two Supreme Court Justices into recusing themselves, for no legitimate reason, in upcoming cases that involve him. Not only is this corrupt, it’s felony obstruction of justice. But it’s also, very obviously, not going to work. Sonia Sotomayor and Ruth Bader Ginsberg obviously are not going to recuse themselves. And there’s no apparatus for Trump somehow magically forcing them to do so. It simply will not happen. Now ask yourself why Trump is even trying to make it happen.

If Trump thought he had five Supreme Court votes in the upcoming cases involving his tax returns, the Mueller transcripts, and his ability to pardon himself on his way out the door, he wouldn’t be worried about trying to force any of the other four Justices to recuse themselves. Trump’s rant is a dead giveaway that he’s worried he doesn’t have five votes. He’s only confident he has four. If he could magically prompt two recusals, he would win with a 4-3 ruling. But again, unfortunately for him, he doesn’t have a magic wand. Donald Trump is clearly afraid John Roberts will vote with the liberals on this matter, which Roberts does a significant minority of the time.

John Roberts can’t be trusted to do the right thing. But Trump can’t count on him to do the wrong thing either, because Roberts instead always does the opportunistic thing. We can’t count on Trump losing these Supreme Court rulings over his fate, but Trump appears to be well aware that he can’t count on winning them either.

Howe on the Court via SCOTUSblog, Opinion analysis: Justices block cross-border shooting lawsuit, Amy Howe, Feb. 25, 2020. It has been 10 years since 15-year-old Sergio Hernandez was shot and killed by a U.S. Border Patrol agent, Jesus Mesa, while Hernandez was playing on the Mexican side of the border. The Hernandez family filed a lawsuit in federal court, seeking to hold Mesa responsible for their son’s death, but today the Supreme Court, by a vote of 5-4, ruled that the lawsuit cannot go forward.

The Hernandez family’s lawsuit contended that Mesa had used excessive force against Sergio, which violated the boy’s rights under the Fourth and Fifth Amendments to the Constitution. The family pointed to a 1971 case, Bivens v. Six Unknown Named Agents, in which the Supreme Court allowed a lawsuit seeking money damages from federal officials for violating the Constitution to go forward.

But in 2017, after hearing oral argument in the family’s case for the first time, the Supreme Court sent the case back to the lower courts for them to reconsider in light of the Supreme Court’s decision in Ziglar v. Abbasi, holding that a Bivens remedy should not be extended to a “new context” when there are “special factors counseling hesitation” and Congress has not affirmatively authorized a suit for damages. When the case went back to the U.S. Court of Appeals for the 5th Circuit, the court concluded that the Hernandez family cannot rely on Bivens to bring their claims against Mesa. The Supreme Court upheld that ruling today.

samuel alitoIn a decision by Justice Samuel Alito that was joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, the court acknowledged that the case is a “tragic” one, but it ultimately concluded that Congress, rather than the courts, should decide whether to allow plaintiffs to seek money damages from a federal official. Alito, right, began by noting that in the nearly 50 years since the decision in Bivens, the Supreme Court has only extended Bivens twice. Not only is the extension of Bivens “a disfavored judicial activity,” Alito stressed, but the justices “have gone so far as to observe that if the Court’s three Bivens cases [had] been … decided today, it is doubtful that we would have reached the same result.”

Justice Ruth Bader Ginsburg dissented, in an opinion joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. Ginsburg would have allowed the lawsuit to go forward: “Rogue U.S. officer conduct,” she argued, “falls within a familiar, not a ‘new,’ Bivens setting. Even if the setting could be characterized as ‘new,’ plaintiffs lack recourse to alternative remedies, and no ‘special factors’ counsel against a Bivens remedy.” Ginsburg also lamented that Hernandez’s death “is not an isolated incident” and warned that “it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing.” “I resist the conclusion,” she wrote in closing, “that nothing is the answer required in this case.”

Feb. 23

Trump Power, Payback

Axios, Exclusive: Trump's "Deep State" hit list, Jonathan Swan, right, Feb 23, 2020. The Trump White House and its allies, over the past 18 months, assembled detailed lists of disloyal government officials to oust — and trusted pro-Trump people to replace them — according to more than a dozen jonathan swan twittersources familiar with the effort who spoke to Axios.

Driving the news: By the time President Trump instructed his 29-year-old former body man and new head of presidential personnel to rid his government of anti-Trump officials, he'd gathered reams of material to support his suspicions.

While Trump's distrust has only intensified since his impeachment and acquittal, he has long been on the hunt for "bad people" inside the White House and U.S. government, and fresh "pro-Trump" options. Outside advisers have been happy to oblige.

In reporting this story, I have been briefed on, or reviewed, memos and lists the president received since 2018 suggesting whom he should hire and fire. Most of these details have never been published.

A well-connected network of conservative activists with close ties to Trump and top administration officials is quietly helping develop these "Never Trump"/pro-Trump lists, and some sent memos to Trump to shape his views, per sources with direct knowledge.

ginni thomas gage skidmore CustomMembers of this network include Ginni Thomas (shown in a Gage Skidmore photo), the wife of Supreme Court Justice Clarence Thomas, and Republican Senate staffer Barbara Ledeen.

The big picture: Since Trump's Senate acquittal, aides say the president has crossed a psychological line regarding what he calls the "Deep State." He feels his government — from Justice to State to Defense to Homeland Security — is filled with "snakes." He wants them fired and replaced ASAP.

"I think it's a very positive development," said Rich Higgins, who served on Trump's National Security Council in 2017. H.R. McMaster removed Higgins after he wrote a memo speculating that Trump's presidency faced threats from Marxists, the "Deep State," so-called globalists, bankers, Islamists, and establishment Republicans. (This was long before the full scope of the FBI's Russia investigation was known to Trump and his aides.)

Higgins told me on Sunday he stands by everything he wrote in his memo, but "I would probably remove 'bankers' if I had to do it over and I would play up the intel community role — which I neglected."

Let's get to the memos.

1. The Jessie Liu memo: Shortly before withdrawing the nomination of the former D.C. U.S. attorney for a top Treasury role, the president reviewed a memo on Liu's alleged misdeeds, according to a source with direct knowledge.

Ledeen wrote the memo, and its findings left a striking impression on Trump, per sources with direct knowledge. Ledeen declined to comment.

A source with direct knowledge of the memo's contents said it contained 14 sections building a case for why Liu was unfit for the job for which Treasury Secretary Steven Mnuchin selected her, including:

  • Not acting on criminal referrals of some of Justice Brett Kavanaugh's accusers.
  • Signing "the sentencing filing asking for jail time" for Gen. Michael Flynn (a friend of Ledeen's).
  • Holding a leadership role in a women's lawyers networking group that Ledeen criticized as "pro-choice and anti-Alito."
  • Not indicting former deputy director of the FBI Andrew McCabe.
  • Dismissing charges against "violent inauguration protesters who plotted to disrupt the inauguration."

Neither Liu nor the White House responded to requests for comment.

Between the lines: The Liu memo is not the first such memo to reach the president's desk — and there's a common thread in Groundswell, a conservative activist network that's headed by Thomas and whose members include Ledeen.

Sources leaked me details of two other memos from people associated with the Groundswell network that also caused a stir inside the White House over the past year.

Thomas has spent a significant amount of time and energy urging Trump administration officials to change the personnel inside his government. This came to a head early last year.

Members of Groundswell, whose members earlier led the successful campaign to remove McMaster as national security adviser, meet on Wednesdays in the D.C. offices of Judicial Watch, a conservative legal group that has led the fight against the Mueller probe.

Judicial Watch's president is Tom Fitton. He's a regular on Fox News, and Trump regularly retweets his commentary on the "Deep State."
Conservative activists who attend Groundswell meetings funneled names to Thomas, and she compiled those recommendations and passed them along to the president, according to a source close to her.

She handed a memo of names directly to the president in early 2019. (The New York Times reported on her group's meeting with Trump at the time.)

2. The Groundswell memo: The presidential personnel office reviewed Thomas' memo and determined that some names she passed along for jobs were not appropriate candidates. Trump may revisit some given his current mood.

Potential hires she offered to Trump, per sources with direct knowledge:

  • Sheriff David Clarke for a senior Homeland Security role.
  • Fox News regular and former Secret Service agent Dan Bongino for a Homeland Security or counterterrorism adviser role.
  • Devin Nunes aide Derek Harvey for the National Security Council (where he served before McMaster pushed him out).
  • Radio talk show host Chris Plante for press secretary.
  • Federalist contributor Ben Weingarten for the National Security Council.

What we're hearing: These memos created tension inside the White House, as people close to the president constantly told him his own staff, especially those running personnel, were undermining him — and White House staff countered they were being smeared.

3. The State Department memo: In one extraordinary incident last year, President Trump passed along another action memo to his then-head of presidential personnel, Sean Doocey (since pushed to State and replaced with former body man John McEntee). People familiar with the January 2019 memo say it came from conservatives associated with Groundswell. Though nobody I’ve spoken to has claimed credit for it.

According to sources briefed on the incident, the memo was, in large part, an attack against Doocey. The memo accused him and a colleague in the State Department of obstructionism and named several State Department officials who needed to be fired.

This list named former deputy secretary John Sullivan, deputy undersecretary for management Bill Todd, and undersecretary for political affairs David Hale, who later testified in the impeachment hearings. (Todd and Hale are career foreign service officers, serving in positions typically reserved for career officials.) Sullivan is now the U.S. Ambassador to Russia.

Feb. 18

washington post logoWashington Post, Federal judges reportedly call emergency meeting in wake of Stone case intervention, Fred Barbash, Feb. 18, 2020.
The extraordinary move follows President Trump’s tweets about the Roger Stone case and U.S. District Judge Amy Berman Jackson.
The head of the Federal Judges Association is taking the extraordinary step of calling an emergency meeting to address the intervention in politically sensitive cases by President Trump and Attorney General William P. Barr.

U.S. District Judge Cynthia M. Rufe, the Philadelphia-based judge who heads the voluntary association of around 1,100 life-term federal judges, told USA Today that the issue “could not wait.” The association, founded in 1982, ordinarily concerns itself with matters of judicial compensation and legislation affecting the federal judiciary.

On Sunday, more than 1,100 former Justice Department employees released a public letter calling on Barr to resign over the Stone case.

[More than 1,100 ex-Justice Department officials call for Barr’s resignation]

A search of news articles since the group’s creation revealed nothing like a meeting to deal with the conduct of a president or attorney general.

Justice Department log circularRufe, appointed to the bench by President George W. Bush, could not be reached for comment late Monday.

The action follows a week of turmoil that included the president tweeting his outrage over the length of sentence recommended by career federal prosecutors for his friend Roger Stone and the decision by Barr to withdraw that recommendation.

In between, Trump singled out the judge in the Stone case, Amy Berman Jackson of the U.S. District Court in Washington, for personal attacks, accusing her of bias and spreading a falsehood about her record.

“There are plenty of issues that we are concerned about,” Rufe said to USA Today. “We’ll talk all this through.”

Trump began disparaging federal judges who have ruled against his interests before he took office, starting with U.S. District Judge Gonzalo P. Curiel. After Curiel ruled against Trump in 2016 in a pair of lawsuits detailing predatory marketing practices at Trump University in San Diego, Trump described him as “a hater of Donald Trump,” adding that he believed the Indiana-born judge was “Mexican.”

djt impeachment graphic

washington post logoWashington Post, Trump raises possibility of suing those involved in prosecuting Roger Stone, John Wagner, Feb. 18, 2020. President Trump on Tuesday raised the possibility of suing those involved in prosecuting the Roger Stone case after sharing the opinion of a Fox News commentator who said it is “pretty obvious” that Stone, Trump’s longtime political confidant, should get a new trial.

Trump’s morning tweets marked his latest efforts to intervene in the case of Stone, who faces sentencing this week on charges of witness tampering and lying to Congress.

Defense lawyers for Stone demanded a new trial Friday, one day after Trump suggested that the forewoman in the federal case had “significant bias.”

Trump was referring to Tomeka Hart, a former president of the Memphis City Schools Board of Commissioners and an unsuccessful Democratic candidate for Congress. Hart has identified herself as the forewoman of the jury in a Facebook post, saying she “can’t keep quiet any longer” in the wake of a Justice Department move to reduce its sentencing recommendation for Stone from the seven to nine years recommended by front-line prosecutors.

In his tweets on Tuesday, Trump quoted at length Andrew Napolitano, a former New Jersey Superior Court judge and Fox News commentator, who argued that Stone should receive a trial based on “the unambiguous & self outed bias of the foreperson of the jury.”

“Pretty obvious he should (get a new trial),” Trump quoted Napolitano as saying. “I think almost any judge in the Country would order a new trial, I’m not so sure about Judge Jackson, I don’t know.”

Napolitano was referring to U.S. District Judge Amy Berman Jackson, who is presiding over Stone’s case and who has drawn Trump’s ire on Twitter for her treatment of another ally of his, Paul Manafort, his former campaign chairman.

In his latest tweets — which began about an hour after Napolitano appeared on “Fox & Friends” — Trump also derided prosecutors in the Stone case as “Mueller prosecutors,” a reference to those who worked for special counsel Robert S. Mueller III, who investigated possible coordination between Trump’s campaign and Russian in the 2016 presidential election.

Trump called that investigation “fraudulent,” adding: “If I wasn’t President, I’d be suing everyone all over the place. BUT MAYBE I STILL WILL.”

All four career prosecutors handling the case against Stone withdrew from the legal proceedings last week — and one quit his job entirely — after the Justice Department signaled it planned to undercut their sentencing recommendation. Two of those prosecutors had worked for Mueller.

Stone has been a friend and adviser to Trump since the 1980s and was a key figure in his 2016 campaign, working to discover damaging information on Democratic opponent Hillary Clinton.

More than 2,000 former department employees signed a public letter over the weekend urging Attorney General William P. Barr to resign over his handling of the case and exhorted current department employees to report any unethical conduct. At Barr’s urging, the Justice Department filed an updated sentencing memo suggesting that Stone should receive less prison time.

washington post logoWashington Post, Opinion: We knew what Barr would do. Now it’s too late to stop him. Annie L. Owens, Feb. 18, 2020 (print ed.). The attorney general’s radical view of the executive branch was apparent during his Senate confirmation.

Last week, Attorney General William P. Barr overruled the Justice Department’s sentencing recommendation for President Trump’s ally Roger Stone, who was convicted of lying to Congress, after the president tweeted that the original recommendation was “horrible” and “very unfair.” Barr also ordered a review of former national security adviser Michael Flynn’s prosecution — which, like Stone’s, was initiated by former special counsel Robert S. Mueller III and conducted by career Justice Department attorneys.

djt william barr doj photo march 2019These developments are the latest evidence that Barr’s loyalty to Trump threatens the Justice Department’s independence, and they have shaken the public’s faith in the rule of law.

But Barr’s attempts to politicize the Justice Department could have been stopped before they began: during his Senate confirmation. Even then, it was clear that Barr’s radical pro-executive branch worldview was contrary to Congress’s institutional interests and made Barr a dangerous pick for a president who, as Sen. Patrick J. Leahy (D-Vt.) warned, “views the Justice Department as an extension of his political power.”

A little over a year ago, I was serving as a senior counsel on the minority staff of the Senate Judiciary Committee, helping Democrats sound the alarm about Barr’s troubling record. A former head of the Justice Department’s Office of Legal Counsel (an office in which I also later served), Barr had espoused an extreme view of executive power that exalted the presidency to a position of inviolability rather than treating Congress as a coequal branch.

This theory, which the Supreme Court has never endorsed, grants the president virtually unchecked authority while seriously hamstringing Congress’s ability to hold the president accountable, including its ability to guard against political interference in law enforcement.

Annie L. Owens is a Litigator with the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. She was previously a Senior Counsel for the Ranking Member of the Senate Judiciary Committee and an Attorney-Adviser in the Justice Department’s Office of Legal Counsel.

Feb. 13

U.S. Courts / Judge Weinstein

Associated Press, Longest-serving federal judge, named by LBJ, retires at 98 today, Staff report, Feb. 13, 2020. A federal judge in New York City who was nominated by President Lyndon Johnson and who contributed to the landmark case that struck down racial segregation in public schools is retiring at age 98.

jack b weinsteinU.S. District Judge Jack Weinstein, right, was known for favoring lenient sentences and rehabilitation. He retired this week after moving his remaining cases to his fellow jurists in the federal court based in Brooklyn, The New York Daily News reported Wednesday.

He was the longest-serving incumbent federal judge, the newspaper reported. He spent nearly 53 years on the bench.

Weinstein, who was appointed in 1967, was the last federal judge named by Johnson. Weinstein said he often pushed for the shortest prison sentences possible so people could try to build a better life.

“We need to rule from a place of love, not hate,” he told the Daily News.

Weinstein moved to Brooklyn with his family when he was 5. He enlisted in the Navy after the bombing of Pearl Harbor and served on a submarine where he helped sink a Japanese cruiser.

He graduated from Brooklyn College and enrolled at Columbia Law School after World War II. He contributed research and briefs to aid future Supreme Court Justice Thurgood Marshall’s argument in the the landmark Brown v. Topeka Board of Education ruling.

In his retirement, Weinstein said he plans to spend more time with his wife, Susan Berk, and work with one of his three sons on a book about Jim Crow laws.

Feb. 12

ICE logo

Politico, Opinion: A Conservative Judge Draws a Line in the Sand With the Trump Administration, Kimberly Wehle, Feb. 12, 2020. Outraged the attorney general had ignored a court order, he authors a blistering opinion rebuking William Barr for overstepping his constitutional authority.

frank easterbrook fullPresident Donald Trump has defanged Congress’ oversight authority. That became clear when the Senate acquitted the president of obstruction. But one conservative judge isn’t willing to let the executive branch steal power from his branch of government.

In a jaw-dropping opinion issued by the 7th U.S. Circuit Court of Appeals in Chicago on January 23, Judge Frank Easterbrook, right — a longtime speaker for the conservative Federalist Society and someone whom the late Justice Antonin Scalia favored to replace him on the U.S. Supreme Court — rebuked Attorney General William Barr for declaring in a letter that the court’s decision in an immigration case was “incorrect” and thus dispensable.

Barr’s letter was used as justification by the Board of Immigration Appeals (the federal agency that applies immigration laws) to ignore the court’s ruling not to deport a man who had applied for a visa to remain in the country.

As Washington reels from the surprise withdrawals of Roger Stone‘s prosecutors, apparently triggered by Trump’s intervention in the upcoming sentencing of his long-time adviser, the Easterbrook broadside offers another window into the way the Trump administration is violating the division of power between the executive and judicial branches.

The 7th Circuit case involved an undocumented immigrant, Jorge Baez-Sanchez, who was subject to removal from the United States after being convicted of a crime.

Baez-Sanchez applied for a special visa allowing him to remain in the U.S. if he was also a victim of a crime. An immigration judge twice granted Baez-Sanchez a waiver. But the Board of Immigration Appeals reversed the immigration judge’s decision, claiming that only the attorney general personally could grant waivers — not immigration judges. Baez-Sanchez appealed to the 7th Circuit, which disagreed and remanded the case with a directive that the Department of Homeland Security comply with the immigration judge’s waiver. When it refused, Easterbrook, a 35-year veteran of the court, had had enough of the willful disregard for judicial authority.

Kimberly Wehle is a law professor, former assistant United States Attorney and author of the book, "How to Read the Constitution — And Why." JIP editor's note: Judge Easterbrook was this editor's law professor teaching antitrust at the University of Chicago School of Law, where Easterbrook has long taught law following his work as an assistant attorney general at during the 1980s in the Bush Justice Department.

Feb. 1

alan dershowitz senate hands out Custom

Palmer Report, Analysis: Donald Trump’s stooge Alan Dershowitz crashes and burns, Ron Leshnower, Feb. 1, 2020. In 1770, John Adams defended the rule of law when he made the unpopular choice to represent Captain Thomas Preston and his British soldiers for their role in the Boston Massacre. His skillful advocacy proved successful and drew praise from both sides. By contrast, Alan Dershowitz’s defense of Trump was as messy as it was shameful, amounting to nothing more than a series of recklessly bizarre utterances.

As the trial began, Dershowitz (shown above in a screenshot at the Senate) attempted to explain why he believes a crime is necessary for impeachment after insisting the opposite during President Clinton’s impeachment trial. Dershowitz baffled CNN’s Anderson Cooper and Jeffrey Toobin by insisting he wasn’t wrong then but that “I’m much more correct right now, having done all the research.” Does this mean that Dershowitz could adopt yet another position in a few years after doing even more research and still be right all three times?

bill palmer report logo headerThings got even worse for Dershowitz this week when Harvard Law School Assistant Professor Nikolas Bowie publicly scolded him for misconstruing his work, in a development that evoked a famous scene in Woody Allen’s Annie Hall. Early in that movie, Allen’s character, Alvy Singer, grows frustrated as he is forced to listen to a professor pontificating to his date about the philosopher Marshall McLuhan. Suddenly, McLuhan appears and shuts down the man, telling him, “You know nothing of my work… How you ever got to teach a course in anything is totally amazing.” Singer then remarks to the camera, “Boy, if life were only like this.”

Life was actually like this when Bowie wrote a New York Times op-ed on Tuesday calling out Dershowitz for misinterpreting his law review article and inaccurately claiming on CNN that he is “completely” on Dershowitz’s side. Bowie pointed out that while his article reflects his view that a crime is required for impeachment, common-law crimes, such as the ones that Trump has been accused of committing, also count.

All of the above was eclipsed at trial on Wednesday when Dershowitz outdid himself by offering the chilling suggestion that “if a President does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.” Dershowitz then rushed out his own op-ed, published Thursday by The Hill, claiming he “said nothing like that” while accusing the media of “deliberately distorting” his argument.

Dershowitz ended his disgraceful week on a runaway train off the rails, declaring to Fox News’ Sean Hannity on Friday night that if Trump wins, “nobody should regard him as having been impeached.” He accused House Speaker Nancy Pelosi of having “pulled a real sharp one” by saying that Trump will remain impeached. According to Dershowitz, Trump should not be considered impeached because “he didn’t have a fair trial.” Indeed, a trial devoid of witnesses and with “total coordination,” as Mitch McConnell put it, between defendant and jury is anything but fair. Finally, Dershowitz managed to get something right.


Jan. 23

washington post logoWashington Post, John Roberts comes face to face with the mess he made, Dana Milbank, Jan. 23, 2020. There is justice in John Roberts being forced to preside silently over the impeachment trial of President Trump, hour after hour, day after tedious day.

The chief justice of the United States, as presiding officer, doesn’t speak often, and when he does the words are usually scripted and perfunctory.

john roberts oOtherwise, he sits and watches. He rests his chin in his hand. He stares straight ahead. He sits back and interlocks his fingers. He plays with his pen. He takes his reading glasses off and puts them on again. He starts to write something, then puts his pen back down. He roots around in his briefcase for something — anything? — to occupy him.

Roberts’s captivity is entirely fitting: He is forced to witness, with his own eyes, the mess he and his colleagues on the Supreme Court have made of the U.S. political system. As representatives of all three branches of government attend this unhappy family reunion, the living consequences of the Roberts Court’s decisions, and their corrosive effect on democracy, are plain to see.

Ten years to the day before Trump’s impeachment trial began, the Supreme Court released its Citizens United decision, plunging the country into the era of super PACs and unlimited, unregulated, secret campaign money from billionaires and foreign interests. Citizens United, and the resulting rise of the super PAC, led directly to this impeachment. The two Rudy Giuliani associates engaged in key abuses — the ouster of the U.S. ambassador to Ukraine, the attempts to force Ukraine’s president to announce investigations into Trump’s political opponents — gained access to Trump by funneling money from a Ukrainian oligarch to the president’s super PAC.

Judicial Conflicts

American Bar Association (ABA) Journal, May federal judges be members of the ABA or the Federalist Society? Debra Cassens Weiss, Jan. 22, 2020. Draft ethics opinion says yes and no.

A draft ethics opinion advises that federal judges should not be members of the conservative Federalist Society and the liberal American Constitution Society because the affiliation raises questions about their impartiality.

But membership in the ABA’s Judicial Division “does not raise these same concerns and is not necessarily inconsistent” with the conduct code covering federal judges, the draft advisory ethics opinion says.

The draft opinion adds that judges should “carefully monitor” ABA activities to make sure their membership remains consistent with the conduct code. Judges should also consider whether a position taken by the ABA might require recusal in particular matters, the draft opinion says.

The draft opinion was posted by the National Review and covered by Law360. The opinion was drafted by the Committee on Codes of Conduct of the U.S. Judicial Conference and circulated to federal judges for review and comment.

ABA President Judy Perry Martinez issued this statement in response to the draft opinion: “The American Bar Association values our judicial members, who bring important experience and legal knowledge to our association. Their involvement in the ABA strengthens our profession and benefits all Americans who seek justice. A draft advisory opinion from the federal judiciary’s Committee on Codes of Conduct confirms that judges’ membership in the ABA can be consistent with the Code of Conduct for United States Judges. The committee opinion recognizes the ABA’s core mission is ‘concerned with the improvement of the law in general and advocacy for the legal profession as a whole.’ ”

The draft opinion considers whether membership in the three organizations is consistent with Canon 4 of the Code of Conduct for United States Judges, which states that a judge may engage in extrajudicial activities that are consistent with the obligations of judicial office.

Commentary to Canon 4 says judges should be encouraged to participate in organizations dedicated to the law to the extent that “impartiality is not compromised.”

The opinion notes that the American Constitution Society describes itself as a “progressive legal organization,” while the Federalist Society describes itself as “a group of conservatives and libertarians dedicated to reforming the current legal order.”

Membership in both groups “could convey to a reasonable person that the affiliated judge endorses the views and particular ideological perspectives advocated by the organization; call into question the affiliated judge’s impartiality on subjects as to which the organization has taken a position; and generally frustrate the public’s trust in the integrity and independence of the judiciary,” the opinion says.

The ABA, on the other hand, says its mission is to “serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession.”

Jackie Koszczuk, a public information officer for the Administrative Office of the U.S. Courts, responded to the ABA Journal’s questions about the draft opinion process with this statement: “The judicial branch is reviewing this matter through its internal processes and is considering all viewpoints.”

The opinion notes that the ABA has taken positions on controversial issues and sometimes advocates those positions in federal court. Those positions “could reasonably be viewed to favor liberal or progressive causes” in today’s politically divisive climate, the draft opinion says.

But those positions are ancillary to the ABA’s core objectives, the draft opinion says.

The draft also notes the bylaws of the ABA’s Judicial Division, which state that its members are not deemed to endorse ABA positions that conflict with their ethics obligations.

Though membership in the ABA’s Judicial Division is not necessarily inconsistent with the ethics code, that is not to say that membership is never problematic, the opinion says.

Jan. 22

washington post logoWashington Post, Chief Justice Roberts admonishes impeachment lawyers, telling them to ‘remember where they are,’ Paul Kane and Elise Viebeck, Jan. 22, 2020. Chief Justice Roberts admonishes impeachment lawyers, telling them to ‘remember where they are’Nadler and Cipollone went off on each other. Then Chief Justice Roberts admonished both. Chief Justice John G. Roberts Jr. delivered a sharp rebuke to both House managers and lawyers for President Trump for their decorum as the impeachment trial debate passed 1 a.m. Wednesday, a marathon session that turned heated between the legal teams.

After several days of serving in a largely passive role overseeing the trial, Roberts interjected after a particularly pointed exchange between House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) and two lawyers for Trump, Pat Cipollone and Jay Sekulow.

“I think it is appropriate at this point for me to admonish both the House managers and president’s counsel in equal terms to remember that they are addressing the world’s greatest deliberative body,” Roberts said.

Nadler delivered an extended statement attacking the president and calling on the Senate to subpoena testimony from former national security adviser John Bolton. Cipollone responded by saying the New York congressman “should be ashamed … for the way you addressed this body.”

“It’s about time we bring this power trip in for a landing,” Cipollone said, prompting Sen. Ron Johnson (R-Wis.) to chuckle. “It’s a farce … Mr. Nadler, you owe an apology to the president of the United States and his family, you owe an apology to the Senate, but most of all, you owe an apology to the American people.”

Sekulow followed Cipollone and went a step further in his words and tone.

“The Senate is not on trial,” he almost shouted.

During these remarks, Nadler did not meet Sekulow’s gaze. As the White House counsel concluded, he returned to his table and threw down his papers in disgust.

The tensions rose further as Nadler responded, calling Cipollone a liar in one case. Cipollone shook his head, along with several Republican senators.

“It’s about time we bring this power trip in for a landing,” Cipollone said, prompting Sen. Ron Johnson (R-Wis.) to chuckle. “It’s a farce … Mr. Nadler, you owe an apology to the president of the United States and his family, you owe an apology to the Senate, but most of all, you owe an apology to the American people.”

Sekulow followed Cipollone and went a step further in his words and tone.

“The Senate is not on trial,” he almost shouted.

The exchange occurred as the Senate dealt with another Democratic amendment to the resolution, offered by Senate Majority Leader Mitch McConnell (R-Ky.), to set the guidelines for the trial and whether additional witnesses or documents need to be produced.

Republicans have refused to consider the witness question until both legal teams present their cases in the coming days, but Democrats have used the impeachment rules to force votes on the issue before either side formally presents its case.

As happened with every Democratic amendment offered, including this one to subpoena Bolton, the Senate rejected the request, 53 to 47, entirely along party lines.

Jan. 21

U.S. Supreme Court

washington post logoWashington Post, Religious-schools case heads to a high court skeptical of stark lines between church and state, Robert Barnes, Jan. 21, 2020 (print ed.). Schools such as Stillwater Christian in Montana are watching what could be a landmark case testing the constitutionality of state laws that exclude religious organizations from government funding.

Parents who believe religious schools such as Stillwater absolutely are the places for their children are at the center of what could be a landmark Supreme Court case testing the constitutionality of state laws that exclude religious organizations from government funding available to others. In this case, the issue rests on whether a scholarship fund supported by tax-deductible donations can help children attending the state’s private schools, most of which are religious.

Jan. 18

ny times logoNew York Times, Supreme Court to Consider Limits on Contraception Coverage, Adam Liptak, Jan. 18, 2020. The justices will weigh Trump administration regulations allowing employers to refuse to provide access to birth control on religious or moral grounds.

The Supreme Court agreed on Friday to decide whether the Trump administration may allow employers to limit women’s access to free birth control under the Affordable Care Act.

The case returns the court to a key battleground in the culture wars, but one in which successive administrations have switched sides.

In the Obama years, the court heard two cases on whether religious groups could refuse to comply with regulations requiring contraceptive coverage. The new case presents the opposite question: Can the Trump administration allow all sorts of employers with religious or moral objections to contraception to opt out of the coverage requirement?

Jan. 16

Impeachment Trial Begins

washington post logoWashington Post, Live Updates: New revelations as Senate trial is set to begin, John Wagner and Felicia Sonmez, Jan. 16, 2020. John G. Roberts Jr., chief justice of the United States, is headed to the Senate on Thursday, where he is expected to be sworn in to preside over the john roberts ohistoric impeachment trial of President Trump, focused on the president’s conduct toward Ukraine.

Roberts’s arrival is part of a day of ritual and formalities, which will also include the swearing in of senators as jurors. Senate Majority Leader Mitch McConnell (R-Ky.) has said the trial will get underway “in earnest” next week. Fallout also continued Thursday from new allegations by Lev Parnas, a former associate of Trump’s personal lawyer Rudolph W. Giuliani, that Trump knew of his efforts to dig up dirt in Ukraine that could benefit Trump politically.

Blockbuster Impeachment News

djt mike pence igor fruman lev parnas rudy giuliani Custom

Donald Trump, his attorney Rudy Giuliani, Vice President Michael Pence and operatives Igor Fruman (second from the left) and Lev Parnas (between Fruman and Trump) pose in better times for them.

 msnbc logo CustomMSNBC / Rachel Maddow Show, Lev Parnas: 'President Trump knew exactly what was going on,' Rachel Maddow, Jan. 15, 2020 (3:06 min.). Lev Parnas, an associate of Trump attorney Rudy Giuliani, talks with Rachel Maddow in an exclusive interview about the extent of Donald Trump's knowledge of the work he was doing to manipulate the president of Ukraine to help Trump smear political rival Joe Biden.

  • lev parnas rachel maddow interview jan 15 2020MSNBC, Lev Parnas (right): 'Attorney General Barr was basically on the team,' 2:19 min.

  • MSNBC, Lev Parnas remarks on role of Devin Nunes in Trump Ukraine Scheme, 2:27 min.

  • MSNBC, Shocking new evidence rocks Trump impeachment before Senate trial, 5:11 min.

  • MSNBC, Ukraine prosecutor offered dirt on Biden in exchange for firing of U.S. Ambassador, Jan. 15, 2020.

washington post logoWashington Post, Opinion: Lev Parnas and Rudy Giuliani have demolished Trump’s claims of innocence, Neal Katyal, right, and Joshua A. Geltzer neal katyal o(professors at Georgetown Law Center), Jan. 15, 2020. New documents show why the president has been trying to hide evidence from Congress. Americans who have been wondering why President Trump has taken the extraordinary step of trying to block every document from being released to Congress in his impeachment inquiry need wonder no longer.

The new documents released Tuesday evening by the House Intelligence Committee were devastating to Trump’s continuing — if shifting — defense of his Ukraine extortion scandal, just days before his impeachment trial is likely to begin in the Senate. These new documents demolish at least three key defenses to which Trump and his allies have been clinging: that he was really fighting corruption U.S. House logowhen he pressured Ukraine on matters related to the Biden family; that Hunter Biden should be called as a witness at the Senate impeachment trial; and that there’s no need for a real, honest-to-goodness trial in the Senate.

The most basic principles of constitutional law require relevant information, including documents and executive branch witnesses, to be turned over to Congress in an impeachment proceeding. Particularly because sitting presidents cannot be indicted, impeachment is the only immediate remedy we the people have against a lawless president. For that remedy to have any teeth, relevant information has to be provided. That’s why President James Polk said that, during impeachment, Congress could “penetrate into the most secret recesses of the Executive Departments … command the attendance of any and every agent of the Government, and compel them to produce all papers, public or private, official or unofficial.” No president, not even Richard Nixon, thought he could just say “no” to impeachment. That’s why the House added Article II to Trump’s impeachment: “Obstruction of Congress.” It was a response to an unprecedented attempt by a president to hide the truth.

nancy pelosi impeachment ny post cover sept 25 2019 CustomThe documents released Tuesday show what Trump has been so afraid of. For starters, they prove that his already-eyebrow-raising claim to have been fighting corruption in Ukraine was bogus. Notes taken by Lev Parnas — who is an associate of Trump’s personal lawyer Rudolph W. Giuliani and is now facing federal criminal charges — show what his and Giuliani’s mission was when they got in touch with Ukrainian President Volodymyr Zelensky: “get Zalensky to Announce that the Biden case will Be Investigated.” Look hard at the real goal here: not to prompt an investigation of Hunter Biden, but to score an announcement of a Biden investigation. Pursuing an announcement, rather than an investigation, makes sense only if Trump’s objective was to dirty the reputation of Joe Biden, a leading political rival.

Both of us served in high-ranking Justice Department positions; we’ve never heard of an investigation that is kept from the Justice Department, given to a private lawyer and then publicly announced — investigations work best when done in secret. If Trump, as he has long claimed, was truly interested in pursuing anti-corruption efforts in the bizarrely specific form of a single investigation of a single American citizen, then he would have wanted an actual investigation. Instead, he was fixated on the public announcement of one — which, if anything, would have harmed the investigation by tipping off its subject. The public announcement would have helped only one thing: Trump’s personal political prospects.

  • Palmer Report, Opinion: Lev Parnas just buried Donald Trump, Mike Pence, Rudy Giuliani, Bill Barr and more, Bill Palmer, Jan. 15, 2020.
  • Palmer Report, Opinion: Lev Parnas just pretty much forced John Bolton’s testimony to happen, Bill Palmer, Jan. 15, 2020.
  • Palmer Report, Opinion: Adam Schiff reveals the House has more up its sleeve against Donald Trump, Bill Palmer, Jan. 15, 2020.
  • Palmer Report, Opinion: Confirmed: Lev Parnas is throwing EVERYONE under the bus tonight, Bill Palmer, Jan. 15, 2020.
  • Palmer Report, Opinion: Here’s what you can expect from Rachel Maddow’s interview tonight with Lev Parnas, Bill Palmer, Jan. 15, 2020.

Roll Call, GAO: Trump’s Ukraine aid pause violated budget law, Paul M. Krawzak, Jan 16, 2020. 1974 budget law limits presidential authority to msnbc logo Customprohibit congressionally approved spending. Ukraine aid legal ruling could shake up impeachment trial..

President Donald Trump’s hold on military assistance for Ukraine last summer ran afoul of a 1974 budget law that limits presidential authority to prohibit congressionally approved spending, the Government Accountability Office said Thursday.

The finding comes as the Senate prepares to begin its impeachment trial next week. House Democrats on Wednesday transmitted to the Senate articles of impeachment leveled at Trump for alleged abuse of power and obstruction of Congress, after charging Trump with using the Ukraine aid as a bargaining chip for personal political gain.

  • Washington Post, Opinion: Impeachment descends into darkness, Dana Milbank
  • Washington Post, Opinion: Lev Parnas just accused Giuliani of a criminal conspiracy with Trump, Greg Sargent

ny times logoNew York Times, Who Will Be Left Standing in the Supreme Court? Linda Greenhouse, Jan. 16, 2020. The Trump administration is doing its best linda greenhouse thumb Customto kick plaintiffs out of lawsuits it opposes. According to the Trump administration, doctors who perform abortion are not entitled to sue on behalf of their patients, even though the Supreme Court has upheld doctors’ “third-party standing” in abortion cases since 1976 on the theory that it is impractical for a woman seeking to terminate a pregnancy to have to bring a lawsuit challenging the constitutionality of a state-created obstacle.

This is a column about standing to sue. It may seem an oddly dry choice of topic with a presidential impeachment about to get underway and the world flying apart at an even faster pace than usual. But as I hope these current examples show, standing is a crucially important component of the power of the federal courts. Judges must dismiss a lawsuit that lacks a plaintiff with standing. In the cases I’ve listed, contested questions of standing are playing out in the shadows. I want to hold them up to the light. The picture is not a pretty one. It could go far to defining the current Supreme Court term.

It’s easy to lull people into assuming that the question of standing embodies some kind of neutral principle, divorced from ideology. Courts have developed a three-part inquiry for deciding whether a plaintiff has standing, designed to ensure that a lawsuit presents the “case or controversy” that Article III of the Constitution requires for the exercise of federal court jurisdiction. Did the plaintiff suffer a real injury? Was the injury caused by the defendant? And can a victory in court actually bring relief? These questions appear to invite simple yes-or-no answers.

But a few minutes’ reflection shows that they are far from value-free, and finding the answers requires the exercise of judgment.

Jan. 13

William Barr is sworn in as U.S. Attorney General. His wife, Donald Trump and Supreme Court Chief Justice John Roberts look on

William Barr is sworn in as U.S. Attorney General. His wife, Donald Trump and Supreme Court Chief Justice John Roberts look on (White House photo).

The New Yorker, William Barr, Trump’s Sword and Shield:  The Attorney General’s mission to maximize executive power and protect the Presidency, David Rohde (an executive editor of and the author of In Deep: The F.B.I., the C.I.A., and the Truth about America’s ‘Deep State’, forthcoming in April, 2020), Jan. 13, 2020 (January 20, 2020 Issue). For decades, Barr has argued that Congress is a menace to the Presidency.  As Attorney General, he’s poised to fight back.

Last October, Attorney General William Barr appeared at Notre Dame Law School to make a case for ideological warfare. Before an assembly of students and faculty, Barr claimed that the “organized destruction” of religion was under way in the United States. “Secularists, and their allies among the ‘progressives,’ have marshalled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values,” he said. Barr, a conservative Catholic, blamed the spread of “secularism and moral relativism” for a rise in “virtually every measure of social pathology”—from the “wreckage of the family” to “record levels of depression and mental illness, dispirited young people, soaring suicide rates, increasing numbers of angry and alienated young males, an increase in senseless violence, and a deadly drug epidemic.”

The speech was less a staid legal lecture than a catalogue of grievances accumulated since the Reagan era, when Barr first enlisted in the culture wars. It included a series of contentious claims. He argued, for example, that the Founders of the United States saw religion as essential to democracy. “In the Framers’ view, free government was only suitable and sustainable for a religious people—a people who recognized that there was a transcendent moral order,” he said. Barr ended his address by urging his listeners to resist the “constant seductions of our contemporary society” and launch a “moral renaissance.”

Donald Trump does not share Barr’s long-standing concern about the role of religion in civic life.

(Though he often says that the Bible is his favorite book, when he was asked which Testament he preferred, he answered, “The whole Bible is incredible.”)

What the two men have in common is a sense of being surrounded by a hostile insurgency.

Jan. 4

Howe on the Court via SCOTUSblog, Analysis: House, blue states ask justices to uphold Affordable Care Act, Amy Howe, Jan. 3, 2020. It has been almost eight years since a divided Supreme Court, with Chief Justice John Roberts providing the deciding vote during the middle of a presidential election, rejected a challenge to the constitutionality of the Affordable Care Act’s individual mandate – the requirement that virtually all Americans obtain health insurance or pay a penalty.

Today the House of Representatives and a group of states with Democratic attorneys general asked the Supreme Court to reaffirm that the mandate is constitutional, once again during a presidential campaign, but this time on a fast track and before review in the lower courts is completed.

In 2012, a majority on the Supreme Court rejected the federal government’s argument that Congress had the power to enact the mandate as part of its authority to regulate commerce. But in a surprise twist, Chief Justice John Roberts joined the court’s four more liberal justices in upholding the mandate on another ground: The penalty imposed on individuals who did not buy health insurance was a tax, which the Constitution permits Congress to impose.

Five years later, as part of the Tax Cuts and Jobs Act of 2017, Congress amended the ACA to set the penalty for failure to buy health insurance at zero, while leaving the rest of the act in place. That prompted two individuals and a group of states to go to federal court in Texas, where they argued that because the penalty is now zero, it can no longer be considered a tax, and the mandate is therefore unconstitutional. Moreover, they contended, without the individual mandate, the rest of the ACA is also invalid.

The federal government declined to defend the ACA, so a group of states, as well as the District of Columbia, joined the lawsuit to do so. The federal judge assigned to the case, Judge Reed O’Connor, agreed with the challengers that the mandate is now unconstitutional. And because the mandate was the “keystone” of the law, O’Connor concluded, the rest of the ACA should fall as well.

The states and the District of Columbia, joined by the U.S. House of Representatives, appealed to the U.S. Court of Appeals for the 5th Circuit, which heard oral argument in the case in July. In its decision last month, the court of appeals agreed that the mandate is unconstitutional, but it sent the case back to the district court for O’Connor to take another look at what parts, if any, of the ACA might still survive, and what Congress’ intent was when it eliminated the penalty.

Today the states and the House of Representatives filed two petitions asking the Supreme Court to weigh in on the constitutionality of the mandate immediately, as well as the ACA’s viability if the mandate is struck down, without waiting for the lower courts to act. Both petitions portray Supreme Court review as inevitable. The Supreme Court, the states note, “normally grants certiorari when a lower court has invalidated a federal statutory provision on constitutional grounds.”

But the justices need to intervene now, the states and the House emphasize, because of the “paralyzing uncertainty” about the ACA that the 5th Circuit’s decision has created.

Families will have more trouble making decisions about what jobs to take or whether to start a family based on their access to health insurance, the states and the House explain, while doubt about the future of the ACA could also affect health-insurance companies as they decide whether to offer insurance on the online marketplaces in each state and, if so, at what rates. “States,” the House adds, “must live with, and plan for, the possibility that they will lose billions of dollars in Medicaid subsidies” if the ACA is struck down. “The debilitating effects of this massive uncertainty will likely persist for years if the Court does not grant review now,” the House continues, because the case otherwise likely would not come back to the Supreme Court until 2022 – at which point the justices would consider the same questions that they are being asked to decide now.

In separate motions, the states and the House ask the justices to expedite consideration of their petitions, with the ultimate goal of having the cases – if granted – briefed and argued this term. They propose two possible briefing schedules for the petition, which are best described as short and shorter. Under one schedule, the briefs in opposition would be due on February 3; the case would be distributed to the justices on February 5; the reply brief would be filed on February 12; and the justices would consider the case at their February 21 conference, with oral argument to follow in late April or “at a special sitting in May 2020.” Under the second schedule, the briefs in opposition would be due, and the case would be distributed to the justices, on January 21; the reply brief would be filed on January 23, and the justices would consider the case at their January 24 conference, with oral argument in late April.

The states and the House also asked the justices to fast-track consideration of their motion to expedite, by directing the respondents to file any opposition to the motion by January 7 and considering the motion at their January 10 conference. The court’s response to this request could provide at least an initial hint at how the justices view the petitions by the states and the House.



December 2019

Dec. 31

ny times logoNew York Times, Impeachment Trial Looming, Chief Justice Reflects on Judicial Independence, Adam Liptak, Dec. 31, 2019. In his year-end report on the judiciary, Chief Justice John Roberts issued pointed remarks that seemed to be addressed to President Trump.

john roberts oAs Chief Justice John G. Roberts Jr. prepares to preside over the impeachment trial of President Trump, he issued pointed remarks on Tuesday in his year-end report on the state of the federal judiciary that seemed to be addressed, at least in part, to the president himself.

The two men have a history of friction, and Chief Justice Roberts, right, used the normally mild report to denounce false information spread on social media and to warn against mob rule. Some passages could be read as a mission statement for the chief justice’s plans for the impeachment trial itself.

“We should reflect on our duty to judge without fear or favor, deciding each matter with humility, integrity and dispatch,” he wrote in the report. “As the new year begins, and we turn to the tasks before us, we should each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.”

The nominal focus of the report was the importance of civics education, but even a casual reader could detect a timely subtext, one concerned with the foundational importance of the rule of law.

  •  New York Times, Judge Orders Alex Jones and Infowars to Pay $100,000 in Sandy Hook Legal Fees
  •  New York Times, Judge Dismisses Lawsuit by Ex-Trump Aide Subpoenaed in Impeachment Inquiry

U.S. Politics

Dec. 29

Department of Injustice?

djt william barr doj photo march 2019

Attorney General William Barr. Under him, the Justice Department has been notable for aiding conservative Christians.

ny times logoNew York Times, Opinion: Bill Barr Thinks America Is Going to Hell, Katherine Stewart (author of The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism) and Caroline Fredrickson (president emerita of the American Constitution Society and author of The Democracy Fix), Dec. 29, 2019.  And he’s on a mission to use the “authority” of the executive branch to stop it.

Why would a seemingly respectable, semiretired lion of the Washington establishment undermine the institutions he is sworn to uphold, incinerate his own reputation, and appear to willfully misrepresent the reports of special prosecutors and inspectors general, all to defend one of the most lawless and corrupt presidents in American history? And why has this particular attorney general appeared at this pivotal moment in our Republic?

A deeper understanding of William Barr is emerging, and it reveals something profound and disturbing about the evolution of conservatism in 21st-century America.

Some people have held that Mr. Barr is simply a partisan hack — willing to do whatever it takes to advance the interests of his own political party and its leadership. This view finds ample support in Mr. Barr’s own words. In a Nov. 15 speech at the Federalist Society’s National Lawyers Convention in Washington, he accused President Trump’s political opponents of “unprecedented abuse” and said they were “engaged in the systematic shredding of norms and the undermining of the rule of law.”

Another view is that Mr. Barr is principally a defender of a certain interpretation of the Constitution that attributes maximum power to the executive. This view, too, finds ample support in Mr. Barr’s own words. In July, when President Trump claimed, in remarks to a conservative student group, “I have an Article II where I have the right to do whatever I want as president,” it is reasonable to suppose this is his CliffsNotes version of Mr. Barr’s ideology.

Both of these views are accurate enough. But at least since Mr. Barr’s infamous speech at the University of Notre Dame Law School, in which he blamed “secularists” for “moral chaos” and “immense suffering, wreckage and misery,” it has become clear that no understanding of William Barr can be complete without taking into account his views on the role of religion in society. For that, it is illuminating to review how Mr. Barr has directed his Justice Department on matters concerning the First Amendment clause forbidding the establishment of a state religion.

In these and other cases, Mr. Barr has embraced wholesale the “religious liberty” rhetoric of today’s Christian nationalist movement. When religious nationalists invoke “religious freedom,” it is typically code for religious privilege. The freedom they have in mind is the freedom of people of certain conservative and authoritarian varieties of religion to discriminate against those of whom they disapprove or over whom they wish to exert power.

America’s conservative movement, having morphed into a religious nationalist movement, is on a collision course with the American constitutional system. Though conservatives have long claimed to be the true champions of the Constitution — remember all that chatter during previous Republican administrations about “originalism” and “judicial restraint” — the movement that now controls the Republican Party is committed to a suite of ideas that are fundamentally incompatible with the Constitution and the Republic that the founders created under its auspices.

robert parry new hs

The late Robert Parry, above: On New Year’s Eve 2017, less than a month before he would die, Consortium News founder Bob Parry wrote a manifesto on the remit of journalism and its threatened demise, a chilling forecast of what was to come.

Consortium News, Opinion: An Apology & Explanation, Two Years On, Robert Parry, Dec. 29, 2019 (Originally published on Dec. 31, 2017). For readers who have come to see Consortium News as a daily news source, I would like to extend my personal apology for our spotty production in recent days.

On Christmas Eve, I suffered a stroke that has affected my eyesight (especially my reading and thus my writing) although apparently not much else. The doctors have also been working to figure out exactly what happened since I have never had high blood pressure, I never smoked, and my recent physical found nothing out of the ordinary. Perhaps my personal slogan that “every day’s a work day” had something to do with this.

Perhaps, too, the unrelenting ugliness that has become Official Washington and national journalism was a factor.

It seems that since I arrived in Washington in 1977 as a correspondent for the Associated Press, the nastiness of American democracy and journalism has gone from bad to worse.

In some ways, the Republicans escalated the vicious propaganda warfare following Watergate, refusing to accept that Richard Nixon was guilty of some extraordinary malfeasance (including the 1968 sabotage of President Johnson’s Vietnam peace talks to gain an edge in the election and then the later political dirty tricks and cover-ups that came to include Watergate).

Rather than accept the reality of Nixon’s guilt, many Republicans simply built up their capability to wage information warfare, including the creation of ideological news organizations to protect the party and its leaders from “another Watergate.”

So, when Democrat Bill Clinton defeated President George H.W. Bush in the 1992 election, the Republicans used their news media and their control of the special prosecutor apparatus (through Supreme Court Chief Justice William Rehnquist and Appeals Court Judge David Sentelle) to unleash a wave of investigations to challenge Clinton’s legitimacy, eventually uncovering his affair with White House intern Monica Lewinsky.

Though I don’t like the word “weaponized,” it began to apply to how “information” was used in America. The point of Consortium News, which I founded in 1995, was to use the new medium of the modern Internet to allow the old principles of journalism to have a new home, i.e., a place to pursue important facts and giving everyone a fair shake. But we were just a tiny pebble in the ocean.

The trend of using journalism as just another front in no-holds-barred political warfare continued – with Democrats and liberals adapting to the successful techniques pioneered mostly by Republicans and by well-heeled conservatives.

“The idea had developed that the way to defeat your political opponent was not just to make a better argument or rouse popular support but to dredge up some ‘crime’ that could be pinned on him or her.”

More and more I would encounter policymakers, activists and, yes, journalists who cared less about a careful evaluation of the facts and logic and more about achieving a pre-ordained geopolitical result – and this loss of objective standards reached deeply into the most prestigious halls of American media.

Dec. 27

SCOTUSblog, Decade in review: Citizens United and campaign spending, Edith Robers, Dec. 27, 2019. One of the first blockbuster Supreme Court decisions of the past 10 years will surely affect the election taking place at the beginning of the new decade. In January 2010, the court ruled 5-4 in Citizens United v. Federal Election Commission that corporations and unions have a First Amendment right to engage in independent spending to influence elections, overturning precedent to strike down part of the McCain-Feingold campaign finance law.

anthony kennedy scotus 236x3001Writing for the majority, Justice Anthony Kennedy, right, discounted concerns that campaign spending would lead to corruption. “The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt,” he explained, and “[t]he appearance of influence or access … will not cause the electorate to lose faith in our democracy.” In a 90-page dissent read from the bench, Justice John Paul Stevens countered that “[a] democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

The decision sparked what was then a rare public breach of separation-of-powers etiquette: During his 2010 State of the Union address, President Barack Obama asserted that it would “open the floodgates for special interests — samuel alitoincluding foreign corporations — to spend without limit in our elections,” and Justice Samuel Alito, left, responded by mouthing “Not true” from the audience.

Citizens United, together with an appeals court decision issued in its wake, led to the rise of so-called “super PACs,” political action committees that can raise unlimited funds from individuals, corporations, unions and other groups and can engage in unlimited spending on political campaigns as long as they do not coordinate directly with the candidates. According to the Center for Responsive Politics, super PACs spent $820,000,000 in the 2018 election cycle.

Dec. 19 supreme court headshots 2019

ny times logoNew York Times, Opinion: The Supreme Court’s Final Exam, Linda Greenhouse right (shown on the cover of her memoir, Just a Journalist), Dec. 19, 2019. How the justices rule on three cases involving Trump’s financial records will tell us all we need to know linda greenhouse cover just a journalistabout the court.

When the first two of President Trump’s appeals seeking to shield his financial records from disclosure reached the Supreme Court last month, I predicted that the justices would take their institutional interests into account and turn the cases down.

I was wrong.

And on reflection, now that the court has agreed to hear those two appeals plus a third, I’m glad I was wrong. Here’s why: The eventual decisions, to come in the months after the as-yet unscheduled arguments in late March or early April, will give the country much-needed clarity about the Supreme Court. With the court in the full glare of an election-year spotlight, we will learn beyond any doubt what kind of Supreme Court we have — and whether its evolution into partnership with a president who acts as if he owns it is now complete.

Those of us who have been warning about this evolution are well aware that it’s a contested claim, subject to ready dismissal as overstatement or ideologically driven fearmongering. So I want to make the case here that for the justices to do anything other than affirm the three decisions at issue by two Courts of Appeals would be to vindicate both the warnings and the president’s disturbing assumption.
In none of the three cases now before the court would the president, if he lost, have to lift a finger. He is a plaintiff, not a defendant. In his capacity as a private citizen, he brought the three lawsuits to quash subpoenas issued by three House of Representative committees and the Manhattan district attorney, not to him but to two banks and an accounting firm, for his personal and corporate financial records.

In fact, in one of the two New York cases, Trump v. Deutsche Bank, Judge Jon O. Newman of the United States Court of Appeals for the Second Circuit, noting that the complaint filed by the president’s lawyers stated that “President Trump brings this suit solely in his capacity as a private citizen,” referred throughout his 106-page opinion to the “Lead Plaintiff” rather than President Trump.

Dec. 17

SCOTUSblog, Ask the author: The enduring and controversial legacy of the Warren Court, Ronald Collins, Dec. 17, 2019. The following is a series of questions posed by Ronald Collins to Geoffrey Stone and David Strauss in connection with their new book, “Democracy and Equality: The Enduring Constitutional Vision of the Warren Court” (Oxford University Press, 2020).

Geoffrey Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School. He served as dean of the law school from 1987-1994 and provost of the University of Chicago from 1994-2002. Stone was a law clerk to Supreme Court Justice William J. Brennan Jr. and before that a law clerk to Judge J. Skelly Wright on the U.S. Court of Appeals for the District of Columbia Circuit.

David Strauss is the Gerald Ratner Distinguished Service Professor of Law and Faculty Director of the Jenner & Block Supreme Court and Appellate Clinic at the University of Chicago Law School. Before joining the law school faculty, he worked as an attorney-advisor in the Office of Legal Counsel at the U.S. Department of Justice and was an assistant to the Solicitor General of the United geoffrey stone david strauss democracy and equality coverStates. Stone and Strauss, along with Yale Law School professor Justin Driver, are the editors of the Supreme Court Review.

Question: “Democracy and Equality” is the 18th book in the “Inalienable Rights” series published by Oxford University Press. As the editor of the series, Geoffrey, congratulations on such an impressive array of books by everyone from Richard Epstein to Laurence Tribe and from Martha Nussbaum to Nadine Strossen. Might you tell us what’s in the works for the next volume or two?

Stone & Strauss: By coincidence, the next two volumes in the series, which will be published in 2020, both deal with the issue of religion. In the 19th volume, Jack Rakove, a Pulitzer Prize-winning historian at Stanford, has written “Beyond Belief, Beyond Conscience,” which explores the evolution of religious freedom from the 16th century to the modern era, focusing especially on history, philosophy and political theory.

In the 20th volume, Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, and Howard Gillman, chancellor of the University of California, Irvine, have written “The Religion Clauses: The Case for Separating Church and State,” which focuses on what the authors see as the troubling directions our conservative justices are now taking insofar as they reject the idea of a wall separating church and state.

Question: The first book in the “Inalienable Rights” series was Richard Posner’s “Not a Suicide Pact: The Constitution in Times of a National Emergency” (2006). In the editor’s note to that volume, Geoffrey and Dedi Felman wrote: “Rights invite discussion: What is a constitutional right? What are the counterbalancing duties?”
In terms of the Warren Court’s civil rights and civil liberties jurisprudence, what do you see as some of the major counterbalancing duties?

Dec. 16

washington post logoWashington Post, Opinion: Don’t assume the Supreme Court will give Trump a resounding victory, Harry Litman (law professor and former federal prosecutor, shown at right), Dec. 16, 2019. President Trump no doubt welcomed the news that harry litman msnbc screenshotthe Supreme Court will review three separate decisions in which lower courts have ruled against him, upholding subpoenas calling for banks and accountants to turn over financial records pertaining to him. He’s taken a shellacking in the federal courts to date, and he’s well aware that the Supreme Court majority that he helped put in place is bullish on executive power.

But it would be a mistake to assume that the court will give Trump a resounding victory, or come close to upholding the extreme propositions that the president has been unsuccessfully advancing in the lower courts.

It is much more likely that the court will first set out principles defining the circumstances — for example, some sort of heightened evidentiary showing — under which the president’s personal records have to be turned over. They probably will be pro-executive branch principles that slant the balance toward future presidents, but Trump needs more than that to keep his taxes from public view.

And the next step after such a holding would be to remand to the lower courts to apply the announced principles, probably during the heat of the election, though possibly after. That is where Trump’s extreme arguments are likely to meet their end.

Dec. 15

Palmer Report, Opinion: Donald Trump freaks out over Supreme Court announcement about his tax returns, Bill Palmer, right, Dec. 15, 2019. On Friday, the Supreme Court announced that it’s bill palmertaking up the case of whether Donald Trump’s accounting firm must give his tax returns to House Democrats and a New York grand jury. While the ruling may not come down until as late as June of 2020, Palmer Report pointed out it’s likely to go against Trump (think John Roberts and Obamacare), and that the ruling will end up coming down just as we’re heading into the 2020 general election cycle.

bill palmer report logo headerWhile it would have been even worse for Donald Trump if the Supreme Court had announced that it wasn’t going to take up the case at all, this is still bad news for him. The only way this could have gone well for him would have been if the high court decided to put off the decision until after the election. Sure enough, Trump is freaking out about it. We know this because he’s suddenly kissing the backside of erratic Supreme Court Justice Brett Kavanaugh.

Trump posted this tweet: “After watching the disgraceful way that a wonderful man, Brett Kavanaugh, was treated by the Democrats, and now seeing first hand how these same brett kavanaughRadical Left, Do Nothing Dems are treating the whole Impeachment Hoax, I understand why so many Dems are voting Republican!” Given the timing, it’s clear that Trump is pandering to Kavanaugh over the tax returns case. Kavanaugh has been voting with the liberals on a number of cases, in the hope that House Democrats won’t refer him for criminal prosecution for perjury once Trump is gone.

Donald Trump is correct to fear that Kavanaugh could end up voting against Trump in order to try to save himself. In any case, if Roberts votes against Trump on Trump’s tax returns, then Kavanaugh’s vote won’t matter. It’s clear that Trump is worried about where this is headed. Not only will the ruling impact the 2020 election, it’ll impact the New York grand jury that’s in the process of criminally indicting Trump on state charges, which will lead to his arrest the minute he’s no longer in office.

Dec. 13

supreme court headshots 2019

washington post logoWashington Post, Supreme Court will take up Trump’s broad claims of protection from investigation,  Robert Barnes, Dec. 13, 2019. The president has mounted a vigorous effort to protect his financial records from prosecutors and Congress. The Supreme Court announced Friday that it will take up President Trump’s broad claims of protection from investigation, raising the prospect of a landmark election-year ruling on the limits of presidential power.

A New York prosecutor and three Democratic-led congressional committees have won lower-court decisions granting them access to a broad range of Trump’s financial records relating to him personally, his family and his businesses.

Unlike other modern presidents and presidential candidates, Trump has not released his tax returns. He and his personal lawyers have mounted a vigorous effort to keep that information private and defeat attempts to obtain the records from financial institutions and his accounting firm.

supreme court graphic

The Supreme Court’s decision to get involved represents a historic moment that will test the justices and the Constitution’s separation-of-powers design. It is the first time the president’s personal conduct has come before the court, and marks a new phase in the investigations that have dogged his presidency.

The court includes two Trump nominees, Justices Neil M. Gorsuch and Brett M. Kavanaugh, and it will draw inevitable comparisons with the dramatic decisions on presidential power the court rendered against Presidents Richard M. Nixon and Bill Clinton. In both cases, justices they had nominated to the court voted against them.

Trump attorney William S. Consovoy has argued that while in the White House, Trump has “temporary presidential immunity” not just from prosecution, but also from investigation. At the appeals court hearing in New York, Consovoy said in response to a judge’s question that the president, for as long as he is in office, could not be investigated even for shooting someone on the streets of Manhattan.

Dec. 5  Noah Feldman, Pamela Karlan, Michael Gerhardt and Jonathan Turley , from left, abc

Law professors Noah Feldman, Pamela Karlan, Michael Gerhardt and Jonathan Turley, left to right (ABC News).

The Nation, Opinion: The Republicans’ Star Impeachment Scholar Is a Shameless Hack, Elie Mystal, Dec. 5, 2019. Jonathan Turley’s testimony was so inconsistent, it contradicted his own previous statements on impeachment. The House Judiciary Committee held something like a national teach-in on impeachment yesterday. Democrats still believe they can counter the Republican strategy of lying to their base with the somber recitation of facts. So they brought in four legal scholars to explain the constitutional process of impeachment and talk about whether President Donald Trump committed impeachable offenses.

Three of the professors agreed that Trump should be impeached: Noah Feldman of Harvard Law School, Pam Karlan of Stanford Law School, and Michael Gerhardt of the University of North Carolina School of Law.

The fourth professor, requested by Republicans on the committee, was Jonathan Turley from George Washington University Law School. Republicans know that all they have to do to outflank the Democrats is serve up talking points Sean Hannity can use on his show. They tapped Turley to do the easy work of poisoning the well with more misinformation.

jonathan turleyTurley, right, did not disappoint. He told Republicans what they wanted to hear right from his opening statement: “I’m concerned about lowering impeachment standard to fit a paucity of evidence and an abundance of anger. I believe this impeachment not only fails to satisfy the standard of past impeachments, but would create a dangerous precedent for future impeachments…. This would be the first impeachment in history where there would be considerable debate, and in my view, not compelling evidence, of the commission of a crime.”

Turley beclowned himself with his remarks, because this is not the first time Jonathan Turley has testified about impeachment. In 1998, testifying in front of the House Judiciary Committee during the Clinton impeachment hearing, Turley said, “No matter how you feel about President Clinton, no matter how you feel about the independent counsel, by his own conduct, he has deprived himself of the perceived legitimacy to govern. You need both political and legal legitimacy to govern this nation, because the President must be able to demand an absolute sacrifice from the public at a moment’s notice.”

It’s impossible to explain the shameless hypocrisy of Turley’s conflicting statements without concluding that his testimony, in both hearings, was offered in bad faith.

Jonathan Turley is punking us. The only dangerous lowering of standards we saw at the hearing was the smuggling of Jonathan Turley onto a panel of experts, the rest of whom were able to testify with academic integrity.

Turley is a paid legal analyst for CBS News. He writes a column for The Hill. And he’s still a tenured professor at George Washington Law. That he was summoned to give such plainly conflicting testimony, and that he was willing to give it even as it directly contradicted his thoughts and writings about prior impeachments, perfectly exemplifies how legal elites and legacy media have failed to meet the challenge of the Donald Trump presidency.

There is simply no professional or societal downside for people like Turley in making these bad, intellectually dishonest arguments. Turley himself was a random environmental law wonk before he made himself famous during the Clinton impeachment years. He made the media rounds then, calling himself a “Democrat” who was willing to speak truth to power about the “serious” nature of Clinton’s misbehavior. Back then, Turley was lauded by people like Rush Limbaugh for demanding that Clinton’s own Secret Service agents be subpoenaed to testify about what they know.

You’ll note that Turley made no such demands yesterday of former national security adviser John Bolton or Acting White House Chief of Staff Mick Mulvaney. Instead of highlighting the fact that Trump is obstructing justice by refusing to allow these people to testify, Turley blamed the Democrats for moving too fast.

You don’t need a law degree to know that everything Jonathan Turley said yesterday was drenched in his own hypocrisy. His testimony was an attempt to distract and dissemble, offered at the behest of the Republican Party, which tapped him likely because it couldn’t find a legal scholar with less partisan baggage to make the same bad-faith arguments. Ken Starr or Jeanine Pirro would have been too obvious for the Republicans’ purposes; Turley’s the hack they call when they don’t want to look like they’re calling in a hack.

Elie Mystal is the executive editor of Above the Law and a contributing writer for "The Nation," as well as the legal editor of WNYC’s "More Perfect."


Nov. 27 supreme court headshots 2019

washington post logoWashington Post, As Trump cases arrive, Supreme Court’s desire to be seen as neutral arbiter will be tested, Robert Barnes and Ann E. Marimow, Nov. 27, 2019 (print ed.). The justices will step onto an unwelcome partisan battleground as they confront a long list of cases involving the president. The legal cases concerning President Trump, his finances john roberts oand his separation-of-powers disputes with Congress are moving like a brush fire to the Supreme Court, and together provide both potential and challenge for the Roberts court in its aspiration to be seen as nonpartisan.

The court, composed of five conservatives nominated by Republican presidents and four liberals chosen by Democrats, has little choice but to step onto a fiercely partisan battleground.

It announced Tuesday that it will consider on Dec. 13 whether to schedule a full briefing and argument on the president’s request that it overturn a lower-court ruling giving New York prosecutors access to Trump’s tax returns and other financial records in their investigation of ­hush-money payments in the lead-up to the 2016 election.

washington post logoWashington Post, Editorial: Trump’s lawless intransigence is eviscerated in court, Editorial Board, Nov. 27, 2019. U.S. District Judge Ketanji Brown Jackson on Monday eviscerated the Trump administration’s lawless intransigence in a ruling that was as sharp as it should have been predictable. No, former White House counsel Donald McGahn is not “absolutely immune from compelled congressional testimony.” No, President Trump cannot prevent Mr. McGahn from responding to legal congressional subpoenas. “Compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law,” the judge wrote.

Previous presidents and congressional leaders have found ways to defuse disputes. George Washington and Ronald Reagan turned over documents to congressional investigators. During Barack Obama’s presidency, Congress held then-Attorney General Eric H. Holder Jr. in contempt when he failed to respond to a congressional subpoena in the overhyped investigation of the “Fast and Furious” gunrunning scheme, but the two sides eventually worked out a compromise that prevented lengthy litigation.

Donald Trump announces the nomination of Brett Kavanaugh, right, to join the U.S. Supreme Court (New York Times photo by Doug Mills on July 9, 2018).

Donald Trump announces the nomination of Brett Kavanaugh, right, to join the U.S. Supreme Court (New York Times photo by Doug Mills on July 9, 2018).

washington post logoWashington Post, Opinion: The many ambitions that propelled Kavanaugh to the Supreme Court, Geoffrey R. Stone, Nov. 27, 2019. Geoffrey R. Stone, right, is the Edward H. Levi geoffrey stonedistinguished professor of law at the University of Chicago and former dean. Whose “supreme ambition” is Ruth Marcus referring to in the title of her extraordinarily detailed and highly insightful new book, Supreme Ambition: Brett Kavanaugh and the Conservative Takeover” There are several possibilities.

The first and most obvious, of course, is Kavanaugh, who won a seat on the Supreme Court. Throughout his career — as a law clerk to Justice Anthony Kennedy, as an assistant to special counsel Kenneth Starr, as a lawyer for the George W. Bush campaign during the 2000 Florida recount, as White House staff secretary during the Bush administration, as a judge on the U.S. Court of Appeals for the D.C. Circuit — Kavanaugh kept his eye on the ultimate goal: the highest court in the land.

Another candidate is Kennedy. When candidate Donald Trump released a list of potential Supreme Court nominees during the 2016 presidential campaign — a list prepared by Leonard Leo of the Federalist Society — Kavanaugh’s name was not on it. After Trump’s election, Kennedy made clear to the new president that if he were to retire, he would like to see his former law clerk Kavanaugh succeed him. This caused bitter disagreement between the White House and Leo, whose Federalist friends worried that Kavanaugh was too much of a “Bushie” and might not fulfill their hard-line right-wing ambitions. After a struggle in the White House, Trump and his advisers rejected Leo’s concerns and settled on Kavanaugh, delivering on Kennedy’s ambition.

Nov. 25

ny times logoNew York Times, Can Trump Challenge His Impeachment in the Supreme Court? Adam Liptak, right, Nov. 25, 2019. The president has vowed to ask the justices to intercede, but the adam liptakConstitution and precedents are against him. “If the partisan Dems ever tried to Impeach,” President Trump wrote on Twitter in the spring, “I would first head to the U.S. Supreme Court.”

Now that impeachment seems virtually certain, it is time to assess Mr. Trump’s vow and ask whether the Supreme Court would entertain his challenge.

The Constitution seems to exclude the court from the impeachment process. It grants the House of Representatives “the sole power of impeachment.” The Senate, similarly, has “the sole power to try all impeachments.” Those are the only provisions of the Constitution that use the pointed word “sole.”

The Supreme Court, too, has been pretty categorical. “The judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments,” Chief Justice William H. Rehnquist wrote for the court in a 1993 opinion that rejected an impeached judge’s objection to the procedures used at his Senate trial.

More than half of the 452 seats in Sunday’s local elections flipped from pro-Beijing to pro-democracy candidates.

Nov. 21

brett kavanaugh nbc sept 27 2018 cropped reuters jim berg

Supreme Court nominee Brett Kavanaugh before Senate Judiciary Committee on Sept. 27, 2018 (Reuters photo by Jim Berg via NBC News)

washington post logoWashington Post, The Kavanaugh vote: Two friends, one judge and a fight for the Senate and Supreme Court, Ruth Marcus, Nov. 21, 2019. Collins and Murkowski were under pressure on Kavanaugh from the start. Then Christine Blasey Ford testified.

Brett M. Kavanaugh, President Trump’s nominee to replace retiring Supreme Court Justice Anthony M. Kennedy, was never going to be confirmed by a wide or comfortable margin. The closely divided Senate, the still-bitter legacy of Senate Majority Leader Mitch McConnell’s decision to block the nomination of Merrick Garland and the once-in-a-generation chance to cement a conservative majority for decades to come — all of these factors augured a nominee who would not win more than a few Democratic votes.

With the Senate split 51 to 49, Republicans had little margin for error; the loss of just two GOP votes would likely doom the nomination. The last-minute emergence of allegations that the nominee had sexually assaulted Christine Blasey Ford at a high school party on a summer night in 1982 threatened to derail the nomination. Wavering senators from both parties demanded an FBI investigation into the allegations by Ford and another woman, Deborah Ramirez, who said she recalled a drunken Kavanaugh exposing himself to her during their freshman year at Yale.

susan collins oIn the last stage of the confirmation battle, as at the start, Kavanaugh’s fate was largely in the hands of just two senators, Susan Collins of Maine, right, and Lisa Murkowski of Alaska, right. With their pro-choice views, they had always been the Republicans most likely to defect and vote against Kavanaugh. Now that volatile issues lisa murkowski oof gender and sexual assault had entered the debate, the pressure on both was even more intense. The two are best friends in the Senate — Collins’s husband, Tom Daffron, served as Murkowski’s chief of staff early in her Senate career — and they tend to vote as a unit. The motto in presidential politics has long been “As Maine goes, so goes the nation.”

In the Kavanaugh fight, the governing assumption was that where Collins went, so would Murkowski. As a result, White House counsel Donald McGahn remained focused on Collins throughout. “The only way ever to convince Don of anything: Does Susan Collins need you to do that?” said one person who worked on the nomination.

In the Kavanaugh fight, the governing assumption was that where Collins went, so would Murkowski. As a result, White House counsel Donald McGahn remained focused on Collins throughout. “The only way ever to convince Don of anything: Does Susan Collins need you to do that?” said one person who worked on the nomination.

washington post logoWashington Post, Justice Kennedy asked Trump to put Kavanaugh on Supreme Court list, book says, Robert Barnes, Nov. 21, 2019. It was a historic moment in April 2017 when Supreme Court justice Anthony M. Kennedy presided over the ceremonial Rose Garden swearing-in for the court’s new member, Neil M. Gorsuch: the first time a sitting justice was joined on the nation’s highest court by one of his former law clerks.

But a secret meeting moments later in the White House was just as significant, according to a new book by Ruth Marcus, a Washington Post deputy editorial page editor.

Kennedy requested a private moment with President Trump to deliver a message about the next Supreme Court opening, Marcus reports. Kennedy told Trump he should consider another of his former clerks, Brett M. Kavanaugh, who was not on the president’s first two lists of candidates.

“The justice’s message to the president was as consequential as it was straightforward, and it was a remarkable insertion by a sitting justice into the distinctly presidential act of judge picking,” Marcus writes in “Supreme Ambition: Brett Kavanaugh and the Conservative Takeover.”

Kennedy announced his retirement 14 months later, after Kavanaugh’s name indeed had been added to Trump’s public list of potential Supreme Court picks. But if the octogenarian Kennedy was envisioning an orderly succession, what the nation got instead was one of the most wrenching, contentious and closest Supreme Court confirmation battles in history.

Kavanaugh’s career-long ambition was nearly derailed by allegations from California professor Christine Blasey Ford that a drunken teenage Kavanaugh had assaulted her at a party in the Washington suburb where both grew up. There were additional reports about Kavanaugh drinking to excess while a student at Yale and exposing himself.

Kavanaugh vehemently denied the accusations and said they were part of a hit job orchestrated by Democrats and liberals desperate to sink his nomination and keep the court from having a conservative majority.

Nov. 18

Palmer Report, Opinion: No, John Roberts and the Supreme Court didn’t just side with Donald Trump on his tax returns, Bill Palmer, Nov. 18, 2019. Supreme Court Chief Justice John Roberts, below left, just announced that he’s putting a hold on the recent U.S. Court of Appeals ruling that Donald Trump’s accounting firm must turn over his financial records and tax returns to the john roberts oHouse impeachment inquiry. This is widely being interpreted as the Supreme Court siding with Trump on the matter. But that’s not what happened today – at all.

The Appeals Court ruling generated a deadline of this Wednesday for Donald Trump’s financial records to be turned over. Trump appealed the ruling to the Supreme Court. Obviously, the Supreme Court isn’t going to be able to figure out before Wednesday how it wants to respond to this appeal.

So, just as things are supposed to work, Roberts announced today that he’s placing a hold on the deadline until the Supreme Court can decide what it wants to do. The next step will be for the Justices to decide if they even want to take up the case. This could still be over within a matter of days.

bill palmer report logo headerThere are some fatalists within the Resistance who decided a long time ago that because there are five conservative Supreme Court Justices, the court will automatically side with Donald Trump on any given ruling. But that’s not how anything works. The dispute over Trump’s financial records is not an ideological matter. There’s no reason to expect that Roberts will side with Trump in this case, and last we checked, Brett Kavanaugh doesn’t get to vote twice. In any case, for now, the upshot is that the Supreme Court has not in any way sided with Trump by making the move it made today. Today’s move was always, and all but automatically, going to happen as a matter of procedure.

Nov. 11

ny times logoNew York Times, How the Trump Administration Eroded Its Legal Case on DACA, Michael D. Shear, Julie Hirschfeld Davis and Adam Liptak, Nov. 11, 2019. When the Supreme Court hears arguments on Tuesday, the administration’s attempts to end the program protecting “Dreamers” could rest on a top aide’s actions in 2017.

The case, one of the most important of the Supreme Court’s term, will address presidential power over immigration, a signature issue for Mr. Trump and one that has divided the nation since he took office. The court’s decision could also have an enormous effect on the lives of the young people in the program, who are known as Dreamers and are broadly seen as sympathetic by large majorities in both parties.

Nov. 8paul friedman graphic

washington post logoWashington Post, Trump ‘violates all recognized democratic norms,’ federal judge says in biting speech on judicial independence, Trump keeps lashing out at judges, Katie Shepherd, Nov. 8, 2019.  In an unusually critical speech that lamented the public’s flagging confidence in the independence of the judicial branch, a federal judge slammed President Trump for “feeding right into this destructive narrative” with repeated attacks and personal insults toward judges he dislikes.

U.S. District Judge Paul L. Friedman of the District of Columbia (shown above) said Trump’s rhetoric “violates all recognized democratic norms” during a speech at the annual Judge Thomas A. Flannery Lecture in Washington on Wednesday.

“We are in unchartered territory,” said Friedman, 75, an appointee of President Bill Clinton. “We are witnessing a chief executive who criticizes virtually every judicial decision that doesn’t go his way and denigrates judges who rule against him, sometimes in very personal terms. He seems to view the courts and the justice system as obstacles to be attacked and undermined, not as a coequal branch to be respected even when he disagrees with its decisions.”

Other judges have raised similar concerns about Trump’s rhetoric and the increasingly partisan interpretation of judicial rulings, but as a senior judge and secretary of the American Law Institute, Friedman’s criticism carries weight.

Trump has denounced judges who have halted some of his administration’s most hotly debated policies, including his threats to withhold federal funds from sanctuary cities and his attempt to end the Deferred Action for Childhood Arrivals (DACA) program, which protects from deportation young undocumented immigrants brought to the United States as children. The president also has attacked judges over rulings that negatively affect him personally.

In 2017, Trump tweeted how a judge’s decision not to imprison Bowe Bergdahl, an Army sergeant who was captured by the Taliban in 2009 after walking away from his battalion in Afghanistan, was a “total disgrace to our Country and to our Military.” On the campaign trail, then-candidate Trump had suggested Bergdahl was a “dirty rotten traitor” who should be sentenced to death.

Trump also attacked U.S. District Judge Gonzalo Curiel, when the federal jurist from the Southern District of California was assigned to preside over a fraud case involving Trump University, a real estate seminar program. Trump suggested Curiel, an appointee of President Barack Obama, could not remain impartial in the case because of his Mexican heritage, despite the fact that the federal judge was born in Indiana and the case had nothing to do with immigration or foreign affairs. Trump ultimately settled the suit, which alleged the seminars used false advertising to ensnare attendees, for $25 million.



Oct. 21

Inside U.S. Supreme Court

SCOTUSblog, Analysis: Is oral-argument talking time all it’s cut out to be? Adam Feldman, Oct. 21, 2019. Supreme Court oral arguments are not entirely what they seem. Although at first blush they may appear to be an opportunity for attorneys to make their arguments directly to the justices, they often become occasions for the justices to test out their theories of a given case and to gauge other justices’ positions on given topics. That is one of the reasons why the justices almost always direct the flow and tenor of each argument.

Justice Stephen Breyer, for instance, is notorious for his lengthy mid-argument orations. Although attorneys still often speak more than individual justices in each argument, they generally have little time to expound on points they feel are important to the case unless these topics are of equal interest to one or more of the justices. Perhaps for this reason, new Supreme Court Guidelines state: “The Court generally will not question lead counsel for petitioners (or appellants) and respondents (or appellees) during the first two minutes of argument.” These two uninterrupted minutes of speech should give the attorneys an opportunity to make points that otherwise would be lost in the mix of the justices’ questions.

This has potential to be a drastic change from past practice. Last term, the attorney who had the shortest amount of time for opening remarks before a justice interjected was Michael Huston in Smith v. Berryhill. Huston spoke for 11 seconds before Justice Sonia Sotomayor jumped in with her first question. (Timing was measured from oral-argument recordings on This point in the transcript is shown below.

There were 33 instances last term in which a merits party’s counsel spoke for 30 seconds or less to open an argument before a justice began with questions. The average amount of speaking time for introductory remarks across the 2018 term was just over 54 seconds. Only five attorneys crossed the two-minute threshold during the term. The longest uninterrupted opening remarks were from Thomas Goldstein in Air & Liquid Systems v. Devries and Cecillia Wang in Nielsen v. Preap (Wang had the longest time to speak to open an argument, at 280 seconds.).

Dr. Adam Feldman is the creator and author of the Empirical SCOTUS blog. He has a law degree from U.C. Berkeley’s Boalt Hall School of Law and practiced law as a trial lawyer for three years before starting a Ph.D. in Political Science from the University of Southern California.

Oct. 13

supreme court headshots 2019

washington post logoWashington Post, The Supreme Court could get a lot more undemocratic, Leah Litman, Oct. 13, 2019. Leah Litman is an assistant professor at the University of Michigan Law School. She represents multiple DACA recipients in "Department of Homeland Security v. Regents of the University of California," a case before the Supreme Court.

Despite the significant power it wields, the Supreme Court is among the federal government’s most undemocratic institutions. Its justices are appointed for life terms, and selected and confirmed by presidents and the Senate — which themselves do not necessarily reflect the will of the public.

For this reason, academics often characterize the court as “counter-majoritarian,” meaning that it has the power to stand against the majority of the public sentiment in setting policy. But as counter-majoritarian as the Supreme Court is by design, it could get even worse. This term, the court will review cases pertaining to weighty topics ranging from LGBTQ rights to protections for undocumented immigrants brought to the United States as children. By the end of next summer, we will have a glimpse into just how undemocratic the new conservative majority on the court is willing to be.

Several cases this term will test the limits of the court’s sociological legitimacy, potentially weakening the court as a legitimate institution in the process. Consider the Title VII cases, which ask the court to decide whether employers can fire their employees for being gay, lesbian, bisexual or transgender. More than 90 percent of Americans believe gays and lesbians should have equal rights in job opportunities; more than half believe that discrimination against the LGBTQ community is a major civil rights issue.

The court’s relative lack of democratic credentials does not mean it is illegitimate. Beyond its constitutional grounding, it has sociological legitimacy, referring to the court’s ability to arrive at results that are generally accepted by the public at large. The court can also claim some moral legitimacy as it meets a minimal threshold of morality and justice.

Or take the cases involving the president’s rescission of the Deferred Action for Childhood Arrivals program. More than 80 percent of Americans want DACA beneficiaries (known as “dreamers”) to be protected. Or consider June Medical Services v. Gee, the new court’s first abortion case. More than half of Americans describe themselves as pro-choice; many more say they support the court’s decision in Roe v. Wade, which recognized a constitutional right for women to end their pregnancies.

And yet, it’s unclear public sentiment will win in any of these cases, potentially sacrificing some of the court’s sociological legitimacy in the process.

Oct. 10

U.S. Supreme Court / Abortion

ny times logolinda greenhouse cover just a journalistNew York Times, Opinion: A Supreme Court Abortion Case That Tests the Court Itself, Linda Greenhouse, right (shown on the cover of her memoir, Just a Journalist), Oct. 10, 2019. What will access to abortion look like under the new conservative majority? Under the rules that normally govern the American judicial system, the Louisiana abortion law at the center of a case the Supreme Court added to its docket last week is flagrantly unconstitutional.

My goal in this column is to make visible not only the stakes in the case but also Louisiana’s strategy for saving its law, the first of a wave of anti-abortion measures to reach a Supreme Court transformed by the retirement of Justice Anthony Kennedy and the addition of two justices appointed by President Donald Trump.

Oct. 8

U.S. Supreme Court

supreme court headshots 2019

Howe on the Court via SCOTUSblog, Argument analysis: Justices divided on federal protections for LGBT employees, Amy Howe, Oct. 8, 2019. Title VII of the Civil Rights Act of 1964 bars employment discrimination “because of … sex.” This morning, in a packed courtroom, the Supreme Court heard oral argument on whether Title VII protects gay, lesbian and transgender employees. Because fewer than half of the 50 states specifically bar discrimination based on sexual orientation or gender identity, the court’s ruling could be significant. And after over two hours of debate, it was not clear how the justices are likely to rule.

The outcome of the two cases could hinge on Justice Neil Gorsuch, who at times appeared sympathetic to the plaintiffs’ argument but also expressed concern about the “massive social upheaval” that he believed would follow from a ruling for them.

The morning was divided into two arguments, involving closely related – but not identical – issues: a pair of cases, argued together, involving whether Title VII bans discrimination based on sexual orientation, followed by a third case in which the justices are considering whether the law prohibits discrimination based on transgender status.

Oct. 4

washington post logoWashington Post, Supreme Court term to begin with blockbuster question: Is it legal to fire someone for being gay or transgender? Robert Barnes, Oct. 4, 2019 (print ed.). It’s among the most consequential issues facing the justices, with more than 70 friend-of-the-court briefs dividing states, religious orders and members of Congress.

washington post logoWashington Post, Supreme Court to review ruling on Louisiana abortion law, Robert Barnes, Oct. 4, 2019. The Supreme Court will review a restrictive Louisiana law that gives the justices the chance to reconsider a recent ruling protecting abortion rights.

The court said Friday it would consider whether the 2014 law requiring doctors at abortion clinics to have admitting privileges at nearby hospitals unduly burdens women’s access to abortion. Clinic owners said the effect of the law would be to close most of the state’s abortion clinics and leave the state with only one doctor eligible to perform the procedure.


Sept. 27

Media / Supreme Court

SCOTUSblog, House Judiciary Committee hears testimony on public access to the court, Katie Bart, Sept. 27, 2019. A subcommittee of the U. S. House Committee on the Judiciary held a hearing yesterday on public access to the federal courts – the second hearing on ethics, accountability and transparency in a 21st-century federal judiciary. Chaired by Rep. Hank Johnson, D-Ga., the subcommittee took expert testimony from a variety of witnesses, including two district court judges, an attorney in private practice and several journalists.

A major concern of the committee was the transparency of the Supreme Court and what improvements might be made in public access to oral arguments. Johnson began his opening statement by showing a New York Times photograph of the lines outside the Supreme Court on an argument day. Johnson questioned the fairness of a system in which line-standers are paid $50 an hour to obtain a seat in the courtroom. Invoking Lord Chief Justice of England Gordan Hewert, Johnson said, “It’s not enough that justice is done, the public must also see justice being done.”

The committee generally agreed that more immediate access to audio recordings of Supreme Court oral arguments would be an improvement. On the subject of allowing cameras in the courtroom, many of the members predicted, based on their own institution’s relationship with C-SPAN, that advocates and the justices might “play to the cameras.” Rep. Andy Biggs, R-Ariz., quoted Chief Justice John Roberts’ take: “’I think if there were cameras that the lawyers would act differently. I think, frankly, that some of my colleagues would act differently and that would affect what we think is a very important and well-functioning part of the decision process. I don’t think that are a lot of public institutions, frankly, that have been improved by how they do business by camera.’”

Judge Audrey G. Fleissig, one of the two district court judges at the hearing, chairs a committee on court administration for the Judicial Conference of the United States. Although the Judicial Conference has piloted the use of cameras in select federal courtrooms, Fleissig insisted that the reviews were mixed and that “on balance, it can be very destructive to the integrity of the court process.”

The journalists who made up the second panel in yesterday’s hearing were more favorable toward cameras in the courtroom.

Sunny Hostin, co-host of “The View,” offered a “unique perspective” as a former prosecutor and African American journalist. Hostin’s testimony focused on how the absence of cameras in federal proceedings – and in the Supreme Court, in particular – has a profound effect on African Americans as the most incarcerated people in the world. Hostin said that “there exists no better cure for the fundamental mistrust and perceived illegitimacy of system than the transparency of the courts that define it – in particular, the highest court in the land.”

Sept. 19

National Press Club, New York Times reporters tell NPC audience Justice Kavanaugh asked them to lie in exchange for an interview, Eleanor Herman, Sept. 19, 2019. New York Times reporters Robin Pogrebin and Kate Kelly revealed at a National Press Club Headliners event Wednesday that their new book, “The Education of Brett Kavanaugh: An Investigation,” does not include an interview with the Supreme Court justice because he asked them to lie in exchange for the interview.

Robin Pogrebin, left, and Kate Kelly (Lorin Klaris photo).Shortly before the book went to print, Pogrebin (left) and Kelly said Kavanaugh agreed to speak with them but only on the condition that the book expressly state they had not done so. Unwilling to lie, they canceled the interview, even though they were already on their way to Washington to conduct it.

The reporters said they wrote the book to provide closure to the Supreme Court confirmation process that a year ago so roiled the nation. Ironically, the publication of their book has roiled it even more.

The goal, the reporters said, was to present a thoroughly investigated, fair and balanced exploration of the FBI investigation, which many Americans saw as rushed and incomplete, and of the man himself.

“We tried to establish how to get the two pictures of Brett Kavanaugh, and how to reconcile them,” Kelly said.

robin progrebin kate kelly kavanaugh coverThe reporters described an abbreviated FBI investigation with parameters set by the president. Agents interviewed 10 carefully selected witnesses out of dozens. Some of Kavanaugh’s classmates who called the FBI to provide information found themselves on hold all day.

The most dramatic testimony of last year’s confirmation hearings was that of Dr. Christine Blasey Ford, who testified that a drunken, teenage Kavanaugh had pinned her to a bed and tried to rip off her clothes before she broke free. Pogrebin and Kelly investigated an allegation by fellow Yale student Deborah Ramirez that Kavanaugh had assaulted her at a drunken party in the 1983-84 academic year. They found her allegation to be credible, as it had been discussed by at least seven classmates years before he became a federal judge.

The team also found no allegations of bad behavior after Kavanaugh graduated college. Pogrebin said, “Let’s say he did these things at 17 or 18. Are they disqualifying if he had exemplary conduct ever since? Did he make a conscious effort to improve himself?”

The reporters said they reached no conclusions themselves because they wanted the readers to do so. They added that Kavanaugh was highly respected in legal circles by Republicans and Democrats alike and, over the years, strived to hire, mentor, and promote women.

While researching the book, they uncovered yet another allegation of assault at a drunken party, as reported by a witness. The new controversy erupted last week when Pogrebin and Kelly’s op-ed in the Times did not mention a crucial piece of information: that the alleged victim said she could not remember anything about the assault.

As a result, President Trump last week called for the mass resignations of New York Times staffers for the good of the nation, while some Democrats called for Kavanaugh's impeachment. A New York Times tweet seeming to make fun of sexual assault—which was soon deleted—stirred up yet more controversy.

Kelly explained that the op-ed was a highly condensed excerpt of the book focusing on Ramirez's story, and they thought it made sense to mention the new, similar allegation. Their first draft stated that the victim claimed to have no memory of the event, but an editor, wanting to protect the identity of an alleged sexual assault victim, removed not only her name but the entire sentence.

The full story of the new allegation is in the book, so the reporters said they had no intention of hiding that aspect.

“It’s hard when you put such effort into being balanced and fair and get caught up in taking a line out of an op-ed or a really bad tweet," Pogrebin said. "I hope we can get past it so people will consider it with an open mind.”

Sept. 18

jacob hornberger newFuture of Freedom Foundation, Opinion: Congress Shares the Blame for the Kavanaugh Fiasco, Jacob G. Hornberger, right, Sept. 18, 2019. When the Republican members of Congress voted in a 50-48 partisan vote to confirm Brett Kavanaugh to the Supreme Court, they obviously believed that a quick vote in favor of confirmation would quell the controversy over Kavanaugh’s nomination. The New York Times’s recent publication of an essay raising new evidence of sex-abuse allegations against Kavanaugh has dashed that hope. The article has ignited a firestorm of controversy, with even Democratic presidential candidates making it an issue.

The controversy originated when Christine Blasey Ford, left, a research psychologist at Stanford University, alleged that when she and Kavanaugh were in high school in 1982, he sexually assaulted her during a house party they were both attending. She alleged that he pounced on her on a bed in an upstairs bedroom, attempted to take her clothes christine blasey ford oath uncreditedoff, and held his hand over her mouth to prevent her from screaming.

For his part, Kavanaugh heatedly and indignantly denied the allegation and claimed that it was politically motivated.

Some Kavanaugh supporters claimed that it would be unfair to punish him for what they considered was a minor incident in high school. But that really wasn’t the real issue regarding confirmation. The real issue, instead, was whether Kavanaugh had committed perjury in his confirmation hearings with respect to his sworn denials of wrongdoing.

In other words, let’s assume that Kavanaugh, from the very beginning, had acknowledged that he had done what Ford was alleging, expressed genuine remorse for it, and apologized for it. I think very few people would have supported punishing him for a grave error in judgment as a high school student 25 years ago by denying him a seat on the Supreme Court.

That’s not what happened, however. Instead, once Ford made a prima facie case establishing the assault, Kavanaugh, below right, testified under oath that the allegation was false. That immediately raised the possibility that he was committing perjury, which is a grave offense, especially for a lawyer. The last thing that any ethical and competent lawyers would want is a lawyer serving on the Supreme Court who has just recently committed perjury in an official proceeding.

Corroborating evidence

brett kavanaugh flagOne of the points that Kavanaugh supporters and even some in the mainstream press made throughout the controversy — and are still making — is that there was no corroborating evidence to support Ford’s contention. But that simply is untrue. Ford did, in fact, provide corroborating evidence of her allegation to the confirmation committee.

Ford’s corroborating evidence was in the form of what the law calls “prior consistent statements.” I wrote about this type of corroborating evidence in my October 9, 2018, article, “Christine Ford’s Corroborating Evidence.” Therefore, I won’t repeat what I wrote there except to emphasize the point: under the law, prior consistent statements made by a complainant do constitute corroborating evidence of the allegation.

Ford’s prior consistent statements consisted of statements that she made to several people about the alleged Kavanaugh assault. Such statements dated back several years before her appearance before the confirmation committee. In fact, some of them dated back to before President Trump was even elected president.

Sept. 15Donald Trump announces the nomination of Brett Kavanaugh, right, to join the U.S. Supreme Court (New York Times photo by Doug Mills on July 9, 2018).

Donald Trump announces the nomination of Brett Kavanaugh, right, to join the U.S. Supreme Court (New York Times photo by Doug Mills on July 9, 2018).

washington post logoWashington Post, 2020 candidates demand Kavanaugh impeachment after new allegation, Emily Wax-Thibodeaux, Sept. 15, 2019. Democrats called for a new investigation of Supreme Court Justice Brett M. Kavanaugh in response to a New York Times article that revealed a new allegation of sexual assault.

Democrats called Sunday for a new investigation of Supreme Court Justice Brett M. Kavanaugh in response to a New York Times piece that said Kavanaugh was seen sexually harassing a female student while at Yale.

Sen. Kamala D. Harris (D-Calif.), Sen. Elizabeth Warren (D-Mass.) and former housing and urban development secretary Julián Castro, Democratic presidential candidates, pushed for Kavanaugh’s impeachment.

Harris and Warren had voted against Kavanaugh’s confirmation, a process during which Christine Blasey Ford accused Kavanaugh of sexual misconduct while they were high school students in the 1980s.

Kavanaugh vehemently denied the claim during what became a bitter confirmation process, which catapulted the debate over the sexual assault allegations into daily conversation amid the #MeToo movement. It also prompted a backlash among those who felt the Supreme Court nominee was being unfairly judged for something that may or may not have happened over three decades ago.

Those debates were reignited this weekend with the Saturday evening publication of the Times piece. “He was put on the Court through a sham process and his place on the Court is an insult to the pursuit of truth and justice,” Harris said in a tweet. “He must be impeached.”

President Trump, meanwhile, accused the “LameStream Media” and Democrats of working together to scare Kavanaugh “into turning Liberal.”

ny times logoNew York Times, Analysis: Brett Kavanaugh Fit In With the Privileged Kids. She Did Not, Robin Pogrebin and Kate Kelly (reporters with the Times shown at left and right, respectively, in a Loren Klaris photo and authors of the forthcoming book, The Education of Brett Kavanaugh: An Investigation), Sept. 15, 2019 (print ed.). Deborah Ramirez’s Yale experience says much Robin Pogrebin, left, and Kate Kelly (Lorin Klaris photo).about the college’s efforts to diversify its student body in the 1980s.

Deborah Ramirez (shown below at left as a Yale student) had the grades to go to Yale in 1983. But she wasn’t prepared for what she’d find there.

A top student in southwestern Connecticut, she studied hard but socialized little. She was raised Catholic and had a sheltered upbringing. In the summers, she worked at Carvel dishing ice cream, commuting in the $500 car she’d bought with babysitting earnings.

deborah ramirez yale croppedAt Yale, she encountered students from more worldly backgrounds. Many were affluent and had attended elite private high schools. They also had experience with drinking and sexual behavior that Ms. Ramirez — who had not intended to be intimate with a man until her wedding night — lacked.

During the winter of her freshman year, a drunken dormitory party unsettled her deeply. She and some classmates had been drinking heavily when, she says, a freshman named Brett Kavanaugh pulled down his pants and thrust his penis at her, prompting her to swat it away and inadvertently touch it. Some of the onlookers, who had been passing around a fake penis earlier in the evening, laughed.

To Ms. Ramirez it wasn’t funny at all. It was the nadir of her first year, when she often felt insufficiently rich, experienced or savvy to mingle with her more privileged classmates.

Mr. Kavanaugh, now a justice on the Supreme Court, has adamantly denied her claims. Those claims became a flash point during his confirmation process last year, when he was also fighting other sexual misconduct allegations from Christine Blasey Ford, who had attended a Washington-area high school near his.

During his Senate testimony, Mr. Kavanaugh said that if the incident Ms. Ramirez described had occurred, it would have been “the talk of campus.” Our reporting suggests that it was.

At least seven people, including Ms. Ramirez’s mother, heard about the Yale incident long before Mr. Kavanaugh was a federal judge. Two of those people were classmates who learned of it just days after the party occurred, suggesting that it was discussed among students at the time.

We also uncovered a previously unreported story about Mr. Kavanaugh in his freshman year that echoes Ms. Ramirez’s allegation. A classmate, Max Stier, saw Mr. Kavanaugh with his pants down at a different drunken dorm party, where friends pushed his penis into the hand of a female student. Mr. Stier, who runs a nonprofit organization in Washington, notified senators and the F.B.I. about this account, but the F.B.I. did not investigate and Mr. Stier has declined to discuss it publicly. (We corroborated the story with two officials who have communicated with Mr. Stier.)

Other recent books on Kavanaugh:

More On Supreme Court

washington post logoWashington Post, Opinion: The Kavanaugh revelations: Why the Supreme Court is broken, E.J. Dionne Jr., right, Sept. 15, 2019. We focus, rightly, on the damage ej dionne w open neckPresident Trump is doing to our institutions. But the wreckage goes beyond Trump and involves the other two branches of government as well. The right wing’s determination to control the Supreme Court is undermining its legitimacy as well as confidence in the U.S. Senate’s approach to confirming nominees.

The costs of this approach were underscored this weekend by a New York Times report that offers new corroboration for charges by Deborah Ramirez that Kavanaugh exposed himself to her when both were undergraduates at Yale. In denying the charge, Kavanaugh told the Senate that had it been true, the incident would have been “the talk of the campus.” Times reporters Robin Pogrebin and Kate Kelly — drawing on their new book, The Education of Brett Kavanaugh: An Investigation — write tellingly: “Our reporting suggests that it was.”

robin progrebin kate kelly kavanaugh coverHere is the institutionally devastating part of their story: Ramirez’s legal team gave the FBI a list of “at least 25 individuals who may have had corroborating evidence” of her story. The bureau, the authors report, “interviewed none of them.” Nor did the FBI look into Stier’s account.

Now let’s take a step back: If Senate Republicans had declared Kavanaugh’s behavior as a high school and college student off-limits, they would have risked a firestorm, but at least they would have been honest about what they were up to.

However, they could not take this route once they agreed to hear psychology professor Christine Blasey Ford’s four hours of testimony about her charge that Kavanaugh had sexually assaulted her in the early 1980s when both were in high school. Ford’s testimony was so credible — Republican after Republican praised her — that the GOP was forced to agree to a brief FBI investigation.

But it was such a sharply constrained investigation that neither Kavanaugh nor Ford was questioned, and the other allegations against Kavanaugh were ignored. “The process was a sham,” Sen. Amy Klobuchar (D-Minn.), a member of the Judiciary Committee who is seeking her party’s presidential nomination, said Sunday on ABC’s “This Week.” She was not being hyperbolic. In the wake of the new revelations, three other Democratic contenders quickly called for Kavanaugh’s impeachment.

mitch mcconnell elevator getty croppedThis leaves it to journalists to keep exploring questions the Senate refused to settle. And it leaves the court and the country in a terrible place.

Senate Majority Leader Mitch McConnell (R-Ky.), right, had already signaled that court packing took priority over due process when he refused even to hold a hearing on President Barack Obama’s nomination of Merrick Garland to the court in 2016. This opened the way for Trump to name two conservatives to the court, Kavanaugh and Justice Neil M. Gorsuch for the seat Garland was denied.

More On Supreme Court

Palmer Report, Opinion: Donald Trump just gave away something huge about Brett Kavanaugh, Bill Palmer, right, Sept. 15, 2019. Earlier this year, Palmer Report pointed out bill palmerthat Donald Trump had a potentially serious Brett Kavanaugh problem, and a surprising one at that. Despite being a far-right extremist, Kavanaugh was voting with the liberals on some fairly major Supreme Court cases. It felt like he was begging the Democrats in Congress not to impeach him, or have him criminally prosecuted for perjury, once Trump is gone.

bill palmer report logo headerYesterday, the New York Times published a lengthy expose full of damning evidence that Brett Kavanaugh is every bit the serial sexual assaulter that his accusers have claimed. This morning, Donald Trump decided to weigh in on Twitter. At first he urged Kavanaugh to take legal action against his accusers. Then Trump illegally instructed the Department of Justice to target the accusers. But then Trump got to the part of his meltdown that truly mattered.

Here’s what Trump said that gives away the whole thing: “Can’t let Brett Kavanaugh give Radical Left Democrat (Liberal Plus) Opinions based on threats of Impeaching him.” In other words, we weren’t just imagining it. Kavanaugh really has been voting with the liberals on some cases, as a way of trying to convince the Democrats to leave him be. And Trump is not too subtly threatening Kavanaugh when it comes to his upcoming votes. It’s not difficult to parse why.

brett kavanaugh mouth open angry testimonyHouse Democrats are currently fighting numerous legal battles over the testimony and evidence involved in Donald Trump’s impeachment. Some of these cases will likely reach the Supreme Court. Donald Trump appears worried that once this happens, Brett Kavanaugh could vote against him, in the hope of saving himself.

We have no idea what Brett Kavanaugh, right, will end up doing. He could vote in Donald Trump’s favor, in the hope that Trump pardons him on perjury and any other charges, thus keeping him out of prison – but in such case Kavanaugh would surely have to resign. Or Kavanaugh could vote against Trump in the feeble hope that it’ll motivate Democrats to leave him alone – but if this backfires, Kavanaugh goes to prison. In any case, Trump is right to be worried. Kavanaugh is compromised in every way possible, and there’s no telling what he’ll do to try to mitigate his own downfall.

Sept. 14

Palmer Report, Opinion: The Brett Kavanaugh scandal just exploded, Bill Palmer, Sept. 14, 2019. Donald Trump and the Republican Senate knew darn well that they were putting a serial sexual assaulter and unstable violent monster on the Supreme Court when they confirmed Brett Kavanaugh. They didn’t care, because it was their only opportunity to get a far-right conservative extremist on the high court and please their billionaire owners. Predictably, the Kavanaugh scandal has – finally – blown up in their faces.

bill palmer report logo headerThe New York Times published a lengthy new investigative article today which digs into Brett Kavanaugh’s history, and guess what? He’s every bit the serial sexual assaulter we all knew he was. The article helps to confirm some of the accusations against him, and even references at least one additional victim who didn’t previously come forward. You may be wondering if it’s too late for this to matter.

Here’s the thing. Senate Democrats can easily refer Brett Kavanaugh to the Department of Justice for felony perjury, which will result in him being indicted, arrested, and possibly in a position where he has to resign from the Supreme Court as part of his plea deal. But they can’t do it until Donald Trump is gone from office, and his corrupt Attorney General Bill Barr is gone along with him. Even if the Democrats were able to oust Kavanaugh right now, Trump would just replace him with another far-right monster.

The takedown of Brett Kavanaugh will – disturbingly for America and unfairly for his victims – have to wait for another day. But in the meantime, some of the Republican Senators who made a point of supporting Brett Kavanaugh are up for reelection in 2020. susan collins oFor instance, Susan Collins’ (shown at right) odds of reelection probably just dropped in half today. The Democrats will hang Kava-rapist around her proverbial neck. Other GOP Senators running in 2020 will also take a hit for having voted for the violent whack job. You can read the full New York Times expose here (Brett Kavanaugh Fit In With the Privileged Kids. She Did Not).

ny times logoNew York Times, Book Review: ‘The Education of Brett Kavanaugh’ Takes a Hard Look at the Supreme Court Justice and His Accusers, Hanna Rosin, Sept. 14, 2019. Nearly a year after the fateful Supreme Court confirmation hearings, Christine Blasey Ford and Brett Kavanaugh have become martyrs in separate and hostile galaxies — one for #believeallwomen and the other for those who believe Democrats will use any means necessary to take down good and honorable men. So there is a weird satisfaction in rewinding the story more than 30 years, back to the moment when the two lived in suburban Maryland and coexisted as part of a small social circle of teenagers who hung out at country club pools all summer and whose pressing concern was which parents were out of town for the weekend.

robin progrebin kate kelly kavanaugh coverThe Education of Brett Kavanaugh, by Robin Pogrebin and Kate Kelly, two experienced New York Times reporters who helped cover the confirmation hearings, comes with an expectation of bombshells (the galleys are stamped “EMBARGOED” on every page). And the authors do in fact turn up a few new revelations about the assault accusations against Kavanaugh. But their real work is to smooth out the main story, create a fuller picture of Kavanaugh himself, place him in relation to Blasey Ford and put the minor players in motion, so that the confirmation showdown has a kind of cinematic inevitability.

The book places Blasey Ford in the summer of 1982, when, she later said, Kavanaugh tried to rape her. A rising junior at Holton-Arms school, a tall cheerleader with feathered bangs and saddle shoes, she spent her days with friends at the Columbia Country Club pool exchanging the early ’80s equivalent of the eye-roll emoji (“mange-moi” and “Kill Dick”). Kavanaugh, as we know from his infamously meticulous calendar, spent his time mowing lawns and figuring out which of his Georgetown Prep friends was “popping,” the technical term for holding a party when your parents were out of town.

For most of the book the writers take an omniscient Woodwardian tone, staying careful and balanced and not cluttering up every sentence with newspaper-style sourcing. But I couldn’t help reading a lot into the title. On my own copy I idly scribbled “Mis” before the “Education,” since it’s clear that academic enrichment is not what the authors have in mind. In high school and college and even a little into law school, the main thing they portray Kavanaugh learning is how to expertly blend into the background hum of blasé misogyny and clubby competitive drinking.

The picture that emerges of Kavanaugh as an actual student is admirable if indistinct. He works hard, graduates near or at the top in his class. A college friend recalls him having a neat stack of books and papers he would move through like a machine. A couple of people remember him as special but just as many remember him as “straightforward and uncomplicated” — or, as some college friends put it, “ham on white.” My favorite observation about his college years is: “Along with playing and writing about sports, Kavanaugh enjoyed watching them in his downtime.” Really, that could be anyone. In fact, when he got his big break as a clerk for Judge Alex Kozinski, the law professor who recommended him described him as a “good student” and not a “great one,” but added, “I got to know his character from basketball.”

Sept. 12

U.S. Crime, Courts

washington post logoWashington Post, She got 12 years for $31 of pot. Years after her parole, she was jailed for the unpaid court fees, Antonia Noori Farzan, Sept. 12, 2019. Sitting in her jail cell this week, Patricia Spottedcrow couldn’t imagine where she was going to get the money she needed for her release.

In 2010, the young Oklahoma mother, who had been caught selling $31 worth of marijuana to a police informant after financial troubles caused her to lose her home, was sentenced to 12 years in prison. It was her first-ever offense, and the lengthy sentence drew national attention, sparking a movement that led to her early release.

But once she was home free, Spottedcrow still owed thousands in court fees that she struggled to pay, since her felony conviction made it difficult to find a job. Notices about overdue payments piled up, with late fees accumulating on top of the original fines. On Monday, the 34-year-old was arrested on a bench warrant that required her to stay in jail until she could come up with $1,139.90 in overdue fees, which she didn’t have. Nearly a decade after her initial arrest, she was still ensnarled in the criminal justice system, and had no idea when she would see her kids again.

washington post logoWashington Post, Trump’s proposals to tackle California homelessness face local, legal obstacles, Scott Wilson, Sept. 12, 2019. The White House effort has taken state officials by surprise, but the state’s growing homeless problem hasn’t been contained by similar policy initiatives in the past.

President Trump’s emerging plan to address California’s homeless crisis includes ideas that have been tried unsuccessfully before, namely the mass housing of people living on the streets, and proposals that have been ruled illegal by federal courts.

The White House effort has taken state officials by surprise, as the president has shifted from criticizing California’s management of homelessness on social media to proposals that would insert the federal government directly into the crisis, including relocating homeless people living on the street and in tent camps to a federal facility.

But the state’s growing homeless problem hasn’t been contained by similar policy initiatives in the past. It is an unusual crisis stemming in part from the state’s economic success and one where the lack of political will, rather than a lack of public resources, is often the primary obstacle to resolving it.

washington post logoWashington Post, Is the Supreme Court too deferential to Trump — or worried some judges are overstepping their power? Robert Barnes, Sept. 12, 2019. Has the Supreme Court become a soft touch for the Trump administration? Or are the justices sending a message to lower courts not to become a part of the “resistance” to the president’s legitimate powers?

The questions became relevant again Wednesday as the court allowed the administration to begin implementing a dramatic change in asylum rules that would bar requests from most Central American migrants who arrive at the southern border seeking protection in the United States.

The court gave no reason in its one-paragraph unsigned order for effectively dissolving an injunction federal courts had placed on the administration’s new policy. The directive would deny in almost all cases asylum requests from those who had traveled through another country without first seeking protection there.

Wednesday marked the second time since the court adjourned in late June that it approved an emergency request from the Trump administration to overrule a lower court on a border security issue. In July, the justices allowed the administration to proceed in transferring billions of dollars in Defense Department funds to border wall construction.

sonia sotomayor in scotus robe1Justice Sonia Sotomayor, right, perhaps the court’s most liberal member, accused the administration of bypassing the normal process and racing to the Supreme Court when it receives an unfavorable ruling in a lower court.

“Historically, the government has made this kind of request rarely; now it does so reflexively,” wrote Sotomayor, who was joined by Justice Ruth Bader Ginsburg. They were the only two to state how they voted on the request.

Sept. 11

ny times logoNew York Times, Supreme Court Lets Trump Bar Asylum Seekers as Legal Fight Continues, Adam Liptak, Sept. 11, 2019. The policy requires many Central American migrants to be denied asylum in another country before applying in the United States. It was the second time in recent months that the Supreme Court backed a major Trump administration immigration initiative.

The Supreme Court on Wednesday allowed the Trump administration to bar most Central American migrants from seeking asylum in the United States, while the legal fight plays out in the courts.

The Supreme Court, in a brief, unsigned order, said the administration may enforce new rules that generally forbid asylum applications from migrants who have traveled through another country on their way to the United States without being denied asylum in that country.

The court’s order was a major victory for the administration, allowing it to enforce a policy that will achieve one of its central goals: effectively barring most migration across the nation’s southwestern border by Hondurans, Salvadorans, Guatemalans and others. Mexican migrants, who need not travel through another country to reach the United States, are not affected by the new policy.

It was the second time in recent months that the Supreme Court has allowed a major Trump administration immigration initiative to go forward. In July, the court allowed the administration to begin using $2.5 billion in Pentagon money for the construction of a barrier along the Mexican border. Last year, the court upheld President Trump’s ban on travel from several predominantly Muslim countries.

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented, saying the court’s action will “upend longstanding practices regarding refugees who seek shelter from persecution.”

The rules reversed longstanding asylum policies that allowed people to seek haven no matter how they got to the United States. A federal appeals court had largely blocked the policy.

Lee Gelernt, a lawyer with the American Civil Liberties Union, which represents the challengers in the new case, stressed that the Supreme Court’s action was provisional. “This is just a temporary step,” he said, “and we’re hopeful we’ll prevail at the end of the day. The lives of thousands of families are at stake.”

The case will almost certainly return to the Supreme Court, but that will take many months.

Sept. 6

U.S. Supreme Court

washington post logoWashington Post, Everything conservatives hoped for and liberals feared’: Neil Gorsuch makes his mark at the Supreme Court, Robert Barnes and Seung Min Kim​, Sept. 6, 2019. In a new book and interview, the Supreme Court justice discusses his strong views on the law and the art of judging.

neil gorsuch circuit portraitSome justices ascend to the Supreme Court quietly, deferring to their elders and biding time before venturing out too far to offer their own views of the law.

Justice Neil M. Gorsuch, right, on the other hand, appears to have been shot from a cannon.

At his inaugural oral argument in April 2017, President Trump’s first choice for the Supreme Court asked 22 questions. In the term just completed, Gorsuch wrote more dissents than any other justice and typed out a whopping 337 pages of opinions. Again, more than anyone else.

Along the way, he has established himself as one of the court’s most conservative justices and a reliable vote for Trump initiatives that have reached the Supreme Court — the travel ban on those from mostly-Muslim countries, adding a citizenship question to the census form and allowing a ban on transgender service in the military to go into effect. He has shown a willingness to overturn precedent and an impatience with more reticent colleagues.

“I’m all in, and I wanted to explain that,” Gorsuch said in a recent interview in his chambers. He was referring to A Republic, If You Can Keep It, a book he has written that goes on sale Tuesday. The title is from Benjamin Franklin’s reported comment when asked what kind of government the Founding Fathers would propose.

washington post logoWashington Post, Opinion: The Supreme Court has become just another arm of the GOP, Sheldon Whitehouse, Sept. 6, 2019. Sheldon Whitehouse, right, a Democrat, represents Rhode Island in the U.S. Senate. Politics is a team sport. We battle, and our courts are supposed to referee our disputes.

sheldon whitehouseBut what if one team spent years and millions of dollars to capture the referees, so the refs could declare that team the winner whenever they fell short on the field? If you were on the other team, you’d cry foul. You’d ask: “Hey, when did the law become a team sport, too?’’
A few weeks ago, several Senate colleagues and I did just that when we filed a friend-of-the-court brief in a case before the Supreme Court in which the National Rifle Association had urged the court to continue its “project” (the NRA’s term) to undermine gun regulations.

We cried foul.

From 2005 through the fall term of 2018, the Roberts court issued 73 5-to-4 partisan decisions benefiting big Republican donor interests: allowing corporations to spend unlimited money in elections; hobbling pollution regulations; enabling attacks on minority voting rights; curtailing labor’s right to organize; denying workers the ability to challenge employers in court; and, of course, expanding the NRA’s gun rights “project.” It’s a pattern.

Of course, in other decisions during that period, such as the 2015 same-sex marriage ruling, a Republican appointed justice joined the liberals. But in its run of 73 partisan 5-to-4 cases, the Republican majority routinely broke traditionally conservative legal principles, such as respect for precedent or “originalist” reading of the Constitution. They even went on remarkable fact-finding expeditions, violating traditions of appellate adjudication.



Aug. 31

World Crisis Radio, Opinion: Two-Pronged Crisis of Democracy, Webster G. Tarpley, right, Aug. 31, 2019 (74:27 min. audio). This is a very dangerous situation. In Britain, we have coming webster tarpley 2007up the decision on whether an 800-year tradition of Parliament lives or dies. If it doesn't hold up, ladies and gentlemen, you may have a fascist dictatorship.

If Trump sees his little friend Bojo [UK Prime Minister Boris Johnson] get away with trampling on the Parliament and donig things that should only be done by constitutional amendemtnt he made be tempted to imitate it.

We've been trying to illustrate all summer the crimes of Trump. We've had the testimony of Congressman Walsh. We're very much aware of his past crimes. The whole point of getting rid of a fascist regime is you can't be too picky about who you regard as an ally or even an "associate."

The quote from Scaramucci: "I don't think Trump is in early stage dementia. I think he's in early stage fascism." That's a direct quote from Scaramucci (financier and former Trump White House Communications Director) on CNN. We now have the testimony from Mattis. Mattis apparentl, he's somewhat evasive in the syntax but it's something like Trump is a person of limited cognitive ability and of bad character. That covers a multitude of sins.

sheldon whitehouseThe struggle in our country is going to get going again in the next week or so as the the House of Representative, comes back into session.

We will be saying a few things about the Supreme Court. We have the very interesting friend of the court letter [Washington Post, Democrats ignite controversy with brief in gun case before Supreme Court, Aug. 16, 2019] coming from Sen. Whitehouse of Rhode Island, left, and a group of other Democratic senators -- and they are warning the Supreme Court that the racket, the constitutional abuse, the crimes against the state would merit impeachment.

So they have done what I regard as a landmark document coming from senators about the excesses, really the crimes, of the Roberts court, the infamous 5-4 decisions, always partisan, always helping the monied interests. If you constantly legislate from the can't imagine that 330 million people are going to sit still for a series of reactionary and destructive decisions made by a bunch of, what?, puppets of these reactionary groups.

Aug. 29

SCOTUSblog, Analysis: Battling over mootness, Stephen Wermiel, Aug. 29, 2019. Mootness is not often the stuff of headlines. But a current dispute over Second Amendment rights and a New York City gun regulation has put mootness in the spotlight.

Last January, the Supreme Court agreed to hear a petition, 18-280, by the New York State Rifle & Pistol Association challenging New York City’s curb on transporting licensed handguns outside the home. The New York regulation, which allowed handguns to be transported only to specified shooting ranges within the city, was upheld by a federal district judge in New York and by the U.S. Court of Appeals for the 2nd Circuit. The lower courts rejected claims that the city regulation violates the Second Amendment, that it interferes with interstate commerce and that it impedes the right to travel.

The Supreme Court’s decision to hear the case marked the first time since 2010 that the justices have agreed to tackle a dispute over the scope of gun rights. Although gun-rights groups have filed numerous briefs urging the court to expand Second Amendment rights, the court had so far declined to take up the issue. Commentators have suggested that the replacement of Justice Anthony Kennedy with Justice Brett Kavanaugh last fall may have given the court a majority favoring strengthened rights of gun owners.

In the 2008 case District of Columbia v. Heller, the court ruled for the first time that the Second Amendment confers a right of individuals to possess guns, at least in their homes for purposes of self-defense. Since then, gun-rights groups have hoped to expand the right beyond the home and beyond self-defense; gun-regulation advocates have pressed to limit gun rights or even to overrule the Heller decision. The issues have divided communities, political parties and the nation.

Soon after the court agreed to hear the New York City case, perhaps because of the prospect of a ruling that might expand the scope of Second Amendment rights, New York City officials moved to amend the challenged regulation and then asked the justices to dismiss the case as moot.

What is mootness and when does it apply? As a general matter, a case becomes moot when the parties no longer have an interest that can be resolved by the court’s decision.

The rule is derived from Article III of the U.S. Constitution, which defines “the judicial power” as extending to “cases” and “controversies.” The Supreme Court has long interpreted this language to mean that federal courts have jurisdiction to decide only those cases in which the parties have concrete interests that will be resolved by a judicial decision. Those tangible interests must be present at every stage of the lawsuit, the court has said, from initial filing to final decision.

A principal theory behind the case and controversy requirement – and behind the mootness doctrine, as well – is that courts will reach the best decisions when the cases they decide are litigated in a process that is truly adversarial on behalf of parties who have a real stake in the outcome.

When tangible interests are no longer present for the parties in a dispute, a case may become moot. The theory, again, is that parties to a case may not make the best arguments and engage in zealous advocacy if they no longer have genuine, tangible interests in the outcome.

There are exceptions to the mootness doctrine. Perhaps the most notable exception applies when the case involves circumstances that exist only for a short, fixed time period and that may be over by the time the litigation reaches the Supreme Court. In cases involving pregnancy and abortion, for example, a woman will almost certainly have either terminated the pregnancy or delivered a baby well before the dispute can reach the appellate stages. The Supreme Court has carved out an exception for cases that are “capable of repetition, yet evading review.” In other words, if the issues may arise again and will often or always face timing challenges, the federal courts should not dismiss such cases for mootness and may continue to hear the litigation.

Another exception to mootness occurs when the defendant in the case voluntarily decides to halt the contested practice that is the basis of the lawsuit. Because the defendant’s cessation of activity is voluntary, the theory goes, the defendant could also decide to resume the contested activity after the case is dismissed as moot. Therefore, courts should be cautious in dismissing for mootness in such circumstances.

Enter the New York gun case. When New York amended its regulations, lawyers for the city quickly asked the Supreme Court to dismiss the case as moot.

Not so fast, replied Paul Clement, representing the New York Rifle & Pistol Association. The case is not moot for several reasons, Clement argued. First, the city’s regulatory changes still take the basic position that the city can regulate transport of licensed guns without regard for the Second Amendment. Second, the city could re-impose regulations, although the change in New York State law makes that more difficult. Third, the new regulations still prohibit those transporting guns outside the city from making interim stops, such as at gas stations or coffee shops. The challengers also accused the city of trying to avoid having to file a brief defending the regulations by suggesting mootness.

This passionate level of dispute over mootness is not the norm. Mootness is often seen as a dry, narrow, procedural issue. But throw the scope of Second Amendment gun rights into the mix, and the gloves have come off.

Aug. 28

Supreme Court Scandal?

Palmer Report, Opinion: The story of Donald Trump, Deutsche Bank, and Anthony Kennedy’s son comes back into the spotlight, Bill Palmer, Aug. 28, 2019. This new report about anthony kennedy scotus 236x3001Donald Trump’s Deutsche Bank loans being signed for by Russian oligarchs close to Putin isn’t news to anyone paying attention. Russia has been Trump’s shadow for over 30 years and his attempts to hide that fact in his taxes is completely what we expected.

bill palmer report logo headerWhat’s truly new here is the fact that Deutsche Bank had an internal guideline to hire the children of power brokers, according to the Washington Post. Deutsche Bank hired Supreme Court Justice Kennedy’s son. It now seems clear this deal was an attempt at owning the ultimate power broker, a Justice on the US Supreme Court (shown at right in an official photo).

We don’t know exactly what Kennedy’s son actually did for Trump, but when Russia shows up in one place, it seems to be in all the other places as well. The Kennedy/Deutsche Bank relationship is going to have to be investigated and prosecuted if wrongdoing occurred, which now seems likely.

deutsche bank logoBut the scary part here is if Trump was illegitimately elected President, then he illegitimately seated two justices on the Supreme Court. Since Trump never does anything without a quid pro quo, we have to ask what Brett Kavanaugh did for Trump to get the nomination. We also never heard exactly how Kavanaugh brett kavanaughmanaged to quickly pay off hundreds of thousands of dollars worth of personal loans before being seated on the Court.

Neil Gorsuch may not have the same shady dealings around him, but even if he’s innocent, Donald Trump nominated him in order to get points from someone else. We need these answers. Trump never works without pay, bottom line. The US Supreme Court is the world’s biggest powerbroker and being able to appoint two justices to be seated on it is the ultimate cash prize. So what did Trump & Co. get in payback? We need to know.

Aug. 26

U.S. Civil Rights / Supreme Court

SCOTUSblog, Monday round-up: DOJ on gay rights, Kalvis Golde, Aug. 26, 2019. The Office of the Solicitor General on Friday filed an amicus brief in the consolidated cases Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda, concerning sex discrimination under Title VII of the Civil Rights Act of 1964.

At the Wall Street Journal (via How Appealing), Brent Kendall reports that the brief asks the Supreme Court “to rule that a longstanding federal civil-rights law prohibiting sex discrimination doesn’t protect gay people in the workplace.” At NBC News, Brooke Sopelsa reports the crux of the administration’s logic: “The ordinary meaning of ‘sex’ is biologically male or female; it does not include sexual orientation.”

Aug. 23

Radiation For High Court Justice

washington post logoWashington Post, Ginsburg underwent radiation treatment for tumor on pancreas, Robert Barnes, Aug. 23, 2019. ruth bader ginsburg portraitJustice Ruth Bader Ginsburg, right, completed radiation treatment for a malignant tumor found on her pancreas, the Supreme Court disclosed Friday. It is her second treatment within a year for cancer.

The court said the treatment began earlier this month, and no additional treatment is planned.

“The tumor was treated definitively and there is no evidence of disease elsewhere in the body,” the court’s spokeswoman said in a statement. “Justice Ginsburg will continue to have periodic blood tests and scans. No further treatment is needed at this time.”

Aug. 17

Challenging U.S. Supreme Court

washington post logoWashington Post, Democrats ignite controversy with brief in gun case before Supreme Court, Robert Barnes​, Aug. 17, 2019 (print ed.). In filing an amicus brief, five Democratic senators questioned whether the high court’s conservative majority is motivated by partisan intent and is in the pocket of the National Rifle Association and the Federalist Society.

sheldon whitehouseIt is rare that an amicus brief filed in a Supreme Court case is characterized as both a brassy reality check and unprecedented political bullying.

But such is the controversy that Sen. Sheldon Whitehouse (D-R.I.), left, and four other Democratic senators have ignited with a filing that instructs the Supreme Court to either drop a New York gun case it has accepted for the coming term or face a public reckoning.

“The Supreme Court is not well. And the people know it,” writes Whitehouse, who is listed as the attorney of record on the friend-of-the-court brief. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ ” The phrase is from a poll question with which a majority democratic donkey logoof Americans agreed.

Democratic Sens. Mazie Hirono (Hawaii), Richard Blumenthal (Conn.) Richard J. Durbin (Ill.) and Kirsten Gillibrand (N.Y.) joined the incendiary brief, which questions whether the court’s conservative majority — nominated by three Republican presidents — is motivated by partisan intent and is in the pocket of the National Rifle Association and the Federalist Society, a conservative legal group.

Aug. 15

U.S. Supreme Court On Guns

ny times logolinda greenhouse cover just a journalistNew York Times, Opinion: The Supreme Court’s Second Amendment Appetite, Linda Greenhouse (shown on the cover of her memoir about covering the court), Aug. 15, 2019. Back in January, I devoted my first column of the new year to the growing impatience of some members of the court for a chance to move the boundaries of the Second Amendment from the home — where its 2008 decision in District of Columbia v. Heller had located the amendment’s protection of the right to bear arms — out to the wider world. A few weeks later, the court agreed to hear the first Second Amendment case in nearly a decade.

Heller was a 5-to-4 decision, and Justice John Paul Stevens, who wrote the principal dissenting opinion, indicated in a memoir published shortly before his death last month that Justice Antonin Scalia, the majority opinion’s author, had to compromise to hold his majority.

His opinion deemed the right to keep a handgun at home for self-defense as the “core” Second Amendment right and continued: “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The court thus left undefined both what it was protecting beyond the “core” and how vigorously courts should scrutinize restrictions that extend out from the home or that deal with other kinds of firearms.

Aug. 8

House Panel Seeks Data On Justice Kavanaugh

Palmer Report, Opinion & Analysis: House Judiciary Committee is finally closing in on Brett Kavanaugh, James Sullivan, Aug. 8, 2019. brett kavanaughSupreme Court Justice Brett Kavanaugh, right – one of the least popular justices in recent history – is once again in the news, as the House Judiciary Committee is closing in on him.

Today, they requested the National Archives send all records from the five years he served as White House Counsel from 2001-2006 in the Bush Administration. Only a sliver of these were made available prior to Kavanaugh’s confirmation, with thousands of pages being withheld by a privately hired Republican attorney. While House Republicans are calling harassment, the committee has two specific reasons to see the documents – one of which has nothing to do with Kavanaugh’s love of beer.

bill palmer report logo headerIn fact, the infamous televised hearing from last fall when he melted down before a national audience was likely not the first time Kavanaugh misled senators. He did something similar in 2006, before senators confirmed him to a federal appeals court. During that 2006 hearing, he was asked if he played a role in the Bush administration’s policy on torture. Kavanaugh denied it, but the Washington Post revealed that he was involved in at least one such discussion as White House Counsel. Aside from that, he has 83 misconduct complaints against him – ones initially dismissed when he was confirmed to the Supreme Court.

At present, codes of judicial conduct do not apply to Supreme Court justices – something that Jerry Nadler and the Judiciary Committee are hoping to fix in the near future with upcoming legislation. Whether the legislation will see light any time soon is a different question, but Kavanaugh’s record may come into the spotlight very soon – and it’s likely to cast a number of Republicans in an unfavorable light at the worst possible time.

Aug. 5

Gun "Rights" and U.S. Courts

jeffrey toobinNew Yorker, Politics Changed the Reading of the Second Amendment — and Can Change It Again, Jeffrey Toobin, right, Aug. 5, 2019. In spite of the mass shootings in El new yorker logoPaso and Dayton last weekend, the future of federal gun control looks grim. Yet the lesson of the gun-rights fight is that no victory, or defeat, is permanent.

Notwithstanding the most recent spate of mass shootings, over the past weekend, the prospects for gun-control legislation in Congress appear remote. The reason is no mystery. The National Rifle Association and its allies in the gun lobby maintain a firm grip on the Republican Party, including President Trump, and thus on veto power over the passage, or even the consideration, of measures to curb gun violence.

But the power of the N.R.A. extends beyond its control of the legislative and executive branches of the federal government. It’s less well known that the N.R.A. has also transformed the judiciary and, in the process, rewritten our understanding of the Second Amendment to the Constitution.

For about two hundred years, the meaning of the Second Amendment was clear and mostly undisputed, despite the gnarled syntax of the text itself: “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.” Generations of Supreme Court and academic opinion held that the amendment did not confer on individuals a right “to keep and bear Arms” but, rather, referred only to the privileges belonging to state militias. This was not a controversial view. The late Chief Justice Warren E. Burger said, in 1991, that the idea that the Second Amendment conferred a right for individuals to bear arms was “a fraud on the American public.” Burger was no liberal, and his view simply reflected the overwhelming consensus on the issue at the time.

nra logo CustomBut, starting in the nineteen-seventies, the N.R.A. undertook a patient and extensive effort to change the public, and eventually the judicial, understanding of the Second Amendment. As David Cole recounts in his book Engines of Liberty, the N.R.A. recognized that its path was blocked by binding precedents in the federal courts, so it turned to a state-by-state approach. Embracing and passing gun-rights legislation in the states, Cole writes, “fostered a legal culture in which the right to bear arms enjoyed a privileged place.”

antonin scaliaAt the same time, the N.R.A. sponsored academic research that purported to show that the traditional understanding of the Second Amendment was incorrect. The movement reached its climax in 2008, when the Supreme Court, in Justice Antonin Scalia’s opinion in District of Columbia v. Heller, rewrote its understanding of the Second Amendment, and concluded that the Framers of the Constitution had, after all, intended the Amendment to confer an individual right to bear arms. (As Adam Gopnik recently observed, Justice John Paul Stevens’s dissent had the better argument, but Scalia’s opinion had the five votes.)

Cole, who is now the national legal director of the American Civil Liberties Union, draws an important parallel to the N.R.A.’s effort to transform the meaning of the Second — that is, the movement to guarantee a constitutional right to same-sex marriage. Of course, these two efforts to change the political trajectory of the country went in opposite ideological directions. But the strategies behind them were remarkably similar. In both cases, the legal terrain, especially in the federal courts, was clearly hostile. In both, the movement for change began succeeding at the state level, and, in both, the culmination came at the Supreme Court. With regard to both gun rights and same-sex marriage, the Court ultimately yielded to a political movement that had mobilized legislators, academics, and ordinary citizens.

There is a lesson in these politically divergent victories for the current moment. Though the Supreme Court has been cautious since 2008 in expanding gun rights, there is every likelihood that the new conservative majority will frustrate federal or state legislative efforts to insure gun safety. In other words, even if Congress or states manage to pass laws restricting gun rights — including limits on assault weapons or even requiring universal background checks — there is a real possibility that a majority of the Justices will overturn these laws as violations of the Second Amendment.

But the lesson of the fight over gun rights — like that over the protection of same-sex marriage — is that the Constitution remains a political document that is subject to the ideological forces of the time. No victory, or defeat, is permanent. The Court changed the Second Amendment, and the Court can change it back again, in its original direction. This kind of change takes significant resources and enormous patience. At the moment, the future of gun control looks grim in all three branches of the federal government. Trump is President, the Republicans control the Senate, and conservative appointees dominate the Supreme Court. Control of the elected branches is up for grabs in less than a year and a half. Control of the Supreme Court will, of course, take much longer to change. But even the Court usually bends with public and political opinion over time, and that change may yet happen on guns. The grim lesson of recent weeks is that the need for that transformation has never been greater.

Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002. He is the author of, most recently, “American Heiress” and is at work on a book about Robert Mueller’s investigation.

Aug. 2

Inside DC: Gun Control

Politico, The Next Big Vote on Gun Control May Be in the Supreme Court, Renato Mariotti, Aug. 2, 2019. Congress gave gunmakers immunity from lawsuits. Now the issue is before the Roberts court. After this weekend’s mass shootings in Texas and Ohio, pressure to reform gun laws has focused on Congress — and, as usual, Congress seems stymied about what to do. But with far less attention, an important strand of the debate has now landed in the Supreme Court.

Last week, the gun-maker Remington, which had annual sales of approximately $600 million in 2017, asked the Supreme Court to overturn a Connecticut decision that gave Sandy Hook families the ability to sue the company over the way it marketed the weapon used in the 2012 school massacre.

The ability to bring suits against gun manufacturers would give American citizens a powerful tool to hold gun-makers liable for the damage their weapons cause — much as cigarette companies were vulnerable to suits for the harms of tobacco. It’s not clear whether John Roberts’ court will take the case, and if it does, whether it will side with the families or uphold protections that gun-makers have enjoyed since the Bush administration.



Border Wall

ny times logoNew York Times, Opinion: Trump’s Wall Gets America Nowhere on Border Security, Editorial Board, July 27, 2019 (print ed.). Immigration reform is long overdue, but it must be based on inclusion and humanity, not on cruel posturing.

SCOTUSblog, Academic highlight: The quiet doctrinal shift (likely) behind the border-wall stay, Stephen I. Vladeck (Professor of law at the stephen vladek university of texas CustomUniversity of Texas), July 27, 2019. By what was effectively a 5-4 vote, the Supreme Court yesterday agreed to fully stay a California district court’s injunction against President Donald Trump’s repurposing of appropriated funds to build part of his “border wall.”

The Supreme Court’s summary order in Trump v. Sierra Club offered one sentence of explanation: “Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” But the decision is part of a larger, emerging trend that I explore in a new paper, a draft of which I’ve posted to SSRN — one in which the solicitor general has been unusually aggressive in seeking emergency or extraordinary relief from the justices, and the court, or at least a majority thereof, has largely acquiesced.

As I wrote back in December, the Supreme Court has broad constitutional and statutory authority to issue emergency relief (such as stays of lower-court rulings pending appeals) or extraordinary relief (such as writs of mandamus or certiorari “before judgment”).

Historically, however, the justices have been loath to do so — preferring to follow regular order whenever possible, and requiring showings of true exigency and imperative to justify departures from “normal appellate practice.” And perhaps respecting and reflecting that skepticism, the solicitor general has generally been reluctant to invoke the court’s emergency and extraordinary authorities. Over the 16 years of the George W. Bush and Obama administrations, for example, the government sought a total of eight stays from the Supreme Court, asked for certiorari before judgment in four cases, and sought no extraordinary writs.

In sharp contrast, the Trump administration has repeatedly asked the court to depart from regular order. In two and a half years, the solicitor general has applied for at least 20 stays; has sought certiorari before judgment in 10 different cases, and has sought extraordinary writs against three different district court judges. Numerically, the government’s success rate is something of a mixed bag. Including yesterday’s decision, the Supreme Court has granted nine of the government’s stay applications in full (and three in part); it has granted certiorari before judgment in six of the 10 cases; and it has not granted any of the applications for extraordinary writs.

But the numbers don’t tell the full story. When the government has lost, its applications have often been denied without prejudice, or through orders that have nevertheless nudged the lower courts toward the government’s position. Whether directly or indirectly, the government has generally ended up getting most of what it has wanted — and no justice has identified any impropriety in the frequency with which the government has asked the Supreme Court for such unusual interventions.

Simply put, even if the court hasn’t expressly approved of the government’s aggressive litigation tactics, its actions have largely acquiesced in them — and have left at least the impression that it has no objection.

Where has this uptick come from?

[T]he paper suggests a related but distinct explanation: That, quietly but steadily, the court’s doctrinal standard for emergency relief has more generally shifted toward a view first espoused by then-Justice William Rehnquist — that anytime a government policy is enjoined by a lower court, the government suffers irreparable harm regardless of the other equities involved (and regardless of the scope of the injunction). Rehnquist traced this idea to the “presumption of constitutionality” — the idea that, all things being equal, courts assume the government is acting lawfully, and the burden should be on the plaintiffs to prove otherwise. (Rehnquist was arguably overstating things; the presumption is about statutes, not all executive branch conduct, and is supposed to give way in any event to individual constitutional rights.)

On that view (whatever its merits), the government’s applications for emergency relief in these cases would turn entirely on whether the government has a reasonable likelihood of success on the merits of the entire case—and on the justices’ own predictive judgments of how the court is likely to rule if and when the full case reaches the court. And on that view, it wouldn’t (and doesn’t) matter if, as Justice

The harder question is whether this development is a salutary one. The paper offers four potential objections.....

Finally, and perhaps most alarmingly, the court’s conduct gives rise at least to the appearance of inequity — that the court is willing to suspend regular order whenever the government asks (or, worse, when certain administrations ask), but almost never in any other case, regardless of the circumstances.

July 26

Border Wall

supreme court headshots 2019

ny times logoNew York Times, Supreme Court Lets Trump Proceed on Wall Plans Amid Legal Fight, Adam Liptak, July 26, 2019. The Supreme Court on Friday allowed the Trump administration to move forward with plans to build a wall along parts of the Mexican border while litigation over paying for it proceeds.

A trial judge had prohibited the administration from transferring $2.5 billion from the Pentagon’s budget to fund the effort, and an appeals court had refused to enter a stay while it considered the administration’s appeal.

The Supreme Court entered a stay, allowing construction to proceed while the litigation continues.

The court’s four more liberal justices dissented. One of them, Justice Stephen G. Breyer, wrote that he would have allowed preparatory work but not construction.

In February, President Trump declared a national emergency along the Mexican border. The declaration followed a two-month impasse with Congress over funding to build his long-promised barrier wall, one that gave rise to the longest partial government shutdown in the nation’s history.

July 22

Transitions: Famed NYC Prosecutor Dies

robert morgenthau jfk

President John F. Kennedy, left, greets Robert Morgenthau, a JFK-nominated prosecutor for the Southern District of New York. Below at right, Morgenthau and the Rev. Martin Luther King, Jr. meet in 1962 (file photos).

ny times logoNew York Times, Robert Morgenthau, Longtime Manhattan District Attorney, Dies at 99, Robert D. McFadden, July 22, 2019 (print ed.). robert morgenthau mlk 1962 croppedMr. Morgenthau waged war on crime for more than four decades as the chief federal prosecutor for Southern New York State and as Manhattan’s longest-serving district attorney. From 1975 to 2009, he was the face of justice in Manhattan, a liberal Democrat elected nine times in succession.

In an era of notorious Wall Street chicanery and often dangerous streets, Mr. Morgenthau was the bane of mobsters, crooked politicians and corporate greed; a public avenger to killers, rapists and drug dealers; and a confidant of mayors and governors, who came and went while he stayed on — for nearly nine years in the 1960s as the United States attorney for the Southern District of New York and for 35 more as Gotham’s aristocratic Mr. District Attorney.

July 18

supreme court headshots 2019

ny times logoNew York Times, Opinion: A ‘Train Wreck’ Was Averted at the Supreme Court, but for How Long? Linda Greenhouse (shown on the cover linda greenhouse cover just a journalistof her memoir Just A Journalist), July 18, 2019. While the rule of law prevailed in the census case, it still hangs by a thread.

The poison emanating from the White House in recent days has been so overwhelming that it’s hard to remember that something else held the country in thrall just a week ago: the prospect that President Trump would defy the Supreme Court and insist on adding a citizenship question to the 2020 census.

There’s a strong temptation to extract a triumphalist narrative from the president’s grim-faced and rant-filled surrender last Thursday. After all, didn’t the rule of law prevail — and perhaps even emerge stronger for having been so sorely tested? Didn’t the country dodge a “constitutional train wreck,” as Harry Litman, a former federal prosecutor and Justice Department official in the Clinton administration, wrote in The Washington Post the next day?

SCOTUSblog, First-person Opinion: Justice Stevens: Setting an example for all of us, Jeffrey L. Fisher (professor of law at Stanford Law School, special counsel at O’Melveny & Myers and law clerk to Justice John Paul Stevens in 1998-99), July 18, 2019. Much has been said in john paul stevens scotus photo portraitthe past couple of days about Justice Stevens’ kindness, humility and generosity of spirit. All of it is true.

But perhaps not quite enough has yet been said about the justice’s integrity. Selecting a nominee in the wake of the Watergate scandal, President Gerald Ford was said to be guided by a single objective: to find the “finest legal mind” available. But the need to select a jurist who was above reproach must surely have been foremost in his thinking as well.

The president found that person in Justice Stevens. Never afraid to speak his mind or stand his ground — though never showy about doing so — the justice seemed to prize his independence of thought above all else. He simply endeavored to figure out the best solution to the problem each case posed, period. If he came up with an elegant resolution others had missed, all the better. He would report his discernment to the clerks with a glint in his eye … and then write it up himself. But the idea he might be swayed by some improper influence, or even fail to give due weight to a counterargument, was laughable.

I think this resolute commitment to searching and evenhanded decision-making was at least partly what has always inspired such fierce admiration among his law clerks. It was taken as a given in chambers that none of us could ever hope to live up to the justice’s example. But we could try, when we engaged with the law, to emulate his model—or at least hope we absorbed as much of his aura as possible. What seemed merely second-nature to him has always been a gleaming ideal for all of us.

July 17

ny times logoNew York Times, John Paul Stevens: 1920-2019, A Liberal Champion of the Supreme Court Dies at 99, Linda Greenhouse, July 17, 2019 (print ed.). In 35 years on the Supreme Court, John Paul Stevens transformed from a Republican antitrust lawyer into the ardent leader of the court’s liberal wing. His notable opinions included the 2006 decision that repudiated the plan to put Guantánamo Bay detainees on trial by military commissions.

john paul stevens scotus photo portraitJohn Paul Stevens, whose 35 years on the United States Supreme Court transformed him, improbably, from a Republican antitrust lawyer into the outspoken leader of the court’s liberal wing, died on Tuesday at a hospital in Fort Lauderdale, Fla. He was 99.

The cause was complications of a stroke he suffered the day before, the Supreme Court announced in a statement.

When he retired in 2010 at the age of 90, Justice Stevens was the second-oldest and second-longest-serving justice ever to sit on the court. Oliver Wendell Holmes Jr. was about eight months older when he retired in 1932, and William O. Douglas had served 36 years (1939-75).

Justice Stevens spent much of his service on the court in the shadow of more readily definable colleagues when he emerged as a central figure during a crucial period of the court’s history: the last phase of Chief Justice William H. Rehnquist’s tenure and the early years under Chief Justice John G. Roberts Jr.

ny times logoNew York Times, Justice Stevens was chosen for his legal skills and not for how he was likely to vote, as is common today, July 17, 2019 (print ed.).

July 4

Trump's Edict On Census

ny times logoNew York Times, Justice Dept. Will Look to Add Citizenship Question to Census, Alan Rappeport, Maggie Haberman and Michael Wines, July 4, 2019 (print ed.). Justice Department officials reversed course and said they were hunting for a way to restore the citizenship question on orders of President Trump. A day earlier, the officials said that the census forms were being printed without the question. A day after pledging us census bureauthat the 2020 census would not ask respondents about their citizenship, the Justice Department reversed course on Wednesday and said it was hunting for a way to restore the question on orders from President Trump.

Officials told a federal judge in Maryland that they thought there would be a way to still add the question, despite printing deadlines, and that they would ask the Supreme Court to send the case to district court with instructions to remedy the situation.

President Trump had been frustrated with Commerce Secretary Wilbur Ross for mishandling the White House’s effort to add a citizenship question to the 2020 census, according to an administration official, and said on Wednesday that he was “absolutely moving forward” with plans to add it despite a Supreme Court decision last week rejecting the move.

It was the second time that Mr. Trump said he was directing the Commerce Department to move forward with the plan, which critics contend is part of an administration effort to skew the census results in favor of Republicans. On Tuesday, the Justice Department said that the census forms were being printed without the citizenship question and Mr. Ross said that he was heeding the court’s ruling.

U.S. Courts / Official Corruption

ny times logoNew York Times, Why the ‘Bridgegate’ Scandal Could Backfire On Prosecurors, Nick Corasaniti, July 4, 2019 (print ed.). The Supreme Court will hear an appeal by the defendants convicted in the closing of access lanes to the George Washington Bridge to punish a mayor. That signals justices are open to weakening the ability of federal prosecutors to go after what they determine to be political malfeasance.

Federal prosecutors have often relied on a powerful criminal statute to bring high-profile corruption cases, including the college admissions scandal that ensnared Hollywood celebrities and a string of bribery investigations that targeted college basketball programs.

But now, a key theory of that statute could be gutted because of a challenge by two defendants in another well-known case — “Bridgegate,” the September 2013 closing of access lanes to the George Washington Bridge, which connects Manhattan and New Jersey, to punish a mayor for refusing to offer a campaign endorsement.

The United States Supreme Court, in a decision that surprised legal experts, last week agreed to hear an appeal of the defendants’ corruption convictions in a move that could significantly weaken the ability of prosecutors to go after what they determine to be political malfeasance.

The court’s decision to take on the appeal by the defendants, Bridget Anne Kelly and Bill Baroni, suggests that the justices are open to overturning their convictions, legal experts said, and follows other rulings that have chipped away at federal corruption laws. At issue in the case is a fraud theory used to prosecute under the mail and wire fraud statutes known as a “right to control.” It rests on the idea that the owner of an asset is defrauded when somebody uses that asset and lies about what they are using it for. In the college admissions scandal, for example, prosecutors said offers of acceptance to universities were misused.



June 30

U.S. Supreme Court

supreme court building

washington post logoWashington Post, Analysis: Newest justices shift high court, but with big differences, Robert Barnes, June 30, 2019 (print ed.). Data shows that Justices Neil M. Gorsuch and Brett M. Kavanaugh have disagreed more than any pair of new justices chosen by the same president in decades.

neil gorsuch headshotPresident Trump’s nominees shifted the Supreme Court during their first term together but hardly transformed it, and their differences were on display as much as their famous similarities.

On the big issues, it turned out, Justices Neil M. Gorsuch, left, and Brett M. Kavanaugh, right, were ready to move the court as far to the right brett kavanaugh.judgeLas Chief Justice John G. Roberts Jr. would abide — and then some.

Because of them, the court finally and forcefully disavowed any role in policing partisan gerrymandering, a decades-long goal of conservative justices. Both were ready to approve the Trump administration’s desire to put a citizenship question on the 2020 Census, even as Roberts said, hold up.

June 28

Major Supreme Court Decisions

supreme court headshots 2019

ny times logoNew York Times, Analysis: Two Rulings Have Vast Implications for U.S. Politics, Michael Wines, June 28, 2019 (print ed.). The Supreme Court handed Republicans a key victory on gerrymandering and gave Democrats a potential win by delaying the addition of a citizenship question to the census. The two bitterly contested cases addressed a fundamental issue: how the political system allocates power.

The rulings by the Supreme Court on Thursday in bitterly contested battles over partisan gerrymandering and the addition of a citizenship question to the 2020 census grappled with issues fundamental to the nation’s democracy: How power is allocated, and ultimately, how us census bureaumuch of a voice the American people have in selecting their leaders.

But far from settling these questions, the court has unleashed even higher-pitched and partisan struggles over once-settled aspects of the country’s governance, placing greater pressures on the nation’s political system.

Gerrymandered maps were once part of an unspoken agreement between rivals that pressing for political advantage was, within limits, part of the electoral game. But in recent years Republicans, aided by sophisticated mapmaking software, have given themselves near-unbreakable power across the country.

Now, with a green light from the justices, the party has an opportunity to lock in political dominance for the next decade in many of the 22 states where it controls both the legislature and the governor’s office.

The decision will almost certainly force Democrats, who control 14 statehouses, to reconsider their belated crusade against gerrymandered maps and begin drawing their own — an eat-or-be-eaten response to Republican success in gaming the redistricting process.

“Expect the abuse to be supercharged,” said Justin Levitt, an associate dean at Loyola Law School and a Justice Department official during the Obama administration. “Now the answer will be, ‘It happens everywhere.’ Expect the disease to spread.”

[Read about how states could now make gerrymandering more extreme.]

The justices also did not resolve what to do about adding a citizenship question to the census, which until recently was regarded as a nonpartisan ritual every 10 years for the country to obtain an accurate

ny times logoadam liptakNew York Times, Analysis: Chief Justice Takes Charge, Irking Both Sides, Adam Liptak, right, June 28, 2019. A pair of stunning decisions on Thursday showed that Chief Justice John G. Roberts Jr. is the new swing vote. Chief Justice John G. Roberts Jr., below left has sat in the center seat on the Supreme Court bench since his arrival in 2005. But only this term did he assume true leadership of the court.

He made clear his influence in a pair of stunning decisions on Thursday, joining the court’s liberal wing in one and his fellow conservatives in the other. In providing the decisive votes and writing the majority opinions in cases on the census and partisan gerrymandering, he demonstrated that he has unquestionably become the court’s ideological fulcrum after the departure last year of Justice Anthony M. Kennedy.

john roberts oThe key parts of both decisions were decided by five-justice majorities, and the chief justice was the only member of the court in both.

The two rulings, one a rebuke to the Trump administration and the other a boon to Republicans, was consistent with Chief Justice Roberts’s insistence that politics should play no role in judging. “We don’t work as Democrats or Republicans,” he said in 2016.

Conservatives expressed bitter frustration on Thursday about what they saw as the chief justice’s unreliability, if not betrayal.

“Chief Justice John Roberts disappointed conservatives today — to a degree not seen since he saved Obamacare in 2012 — when he sided with the court’s four liberals to second-guess the Trump administration’s reasons for adding a citizenship question to the census,” Curt Levey, the president of the Committee for Justice, a conservative activist group, said in a statement. “The census decision will surely deepen the impression that Roberts is the new Justice Kennedy, rather than the reliable fifth conservative vote that liberals feared and conservatives hoped for.”

On the horizon next term are significant cases — on the Second Amendment, on whether a federal law prohibits discrimination against gay and transgender workers and very likely on abortion — that will help bring Chief Justice Roberts’s new role into sharper focus. But he may not retain the decisive vote indefinitely.

The court’s two oldest members — Justice Ruth Bader Ginsburg, 86, and Justice Stephen G. Breyer, 80 — are members of its liberal wing. If President Trump gets the chance to replace one of them, the court would shift decisively to the right.

SCOTUSblog, Video: Tom Goldstein and Sarah Harrington recap OT2018 with Casetext, Jon Levitan, June 28, 2019. Earlier today, Tom Goldstein and Sarah Harrington hosted a webinar with Casetext discussing the major cases of October Term 2018, including yesterday’s decisions in the partisan-gerrymandering and census-citizenship cases. A recording of the webinar is available here .

adam feldmanSCOTUSblog, Analysis: Final Stat Pack for October Term 2018, Adam Feldman, right, June 28, 2019. The Supreme Court term is now complete, resolving cases that had generated months of speculation. Chief Justice John Roberts wrote majority opinions in two of the most anticipated decisions of the term, Department of Commerce v. New York and Rucho v. Common Cause, bringing his total majority-opinion authorship count to seven. Other justices wrote six to eight majority opinions each. The justice who wrote the most total opinions this term was Justice Clarence Thomas with 28, including eight majority opinions, 14 concurrences and six dissents.

With Justice Brett Kavanaugh joining the Supreme Court in October, much of the discussion this term has centered on how the new justice would fit in on the court and mesh with the other sitting justices. If finding agreement was his goal, Kavanaugh seems to have done an effective job. Kavanaugh had the highest frequency in the majority of the justices, at 91 percent. Roberts was second highest at 85 percent. Kavanaugh and Roberts also shared the highest agreement level for any justice pairing this term, at 94 percent. The second-highest agreement level was between Justices Ruth Bader Ginsburg and Sonia Sotomayor, who agreed in 93 percent of their votes.

While Kavanaugh shared high agreement levels with several of the other more conservative justices on the Supreme Court, his agreement levels with some of the more liberal justices were on the high side as well. Kavanaugh’s votes aligned with Justice Samuel Alito’s 91 percent of the time and his agreement level with Thomas was at 80 percent. Below this, Kavanaugh agreed equally often with Justices Stephen Breyer, Elena Kagan and Neil Gorsuch, at 70 percent apiece. Kavanaugh’s agreement level with Gorsuch was on the very low end of the scale when we look at agreement levels between two justices appointed by the same president in their first full term together over the last half century.

Going into the 2019 term, the Supreme Court has already granted 50 cases, which, when certain cases are consolidated, will lead to 41 oral arguments. This includes Carpenter v. Murphy, which was set for reargument in the fall. Many of these cases raise important issues of public concern, including the newly granted cases addressing Deferred Action for Childhood Arrivals, or DACA, and a case reviewing a provision of the Affordable Care Act.

SCOTUSblog, Gerrymandering symposium: Court to foxes — Please guard henhouse, Benjamin D. Battles (the Vermont solicitor general. Vermont, along with 20 other states and the District of Columbia, submitted an amicus curiae brief in Rucho v. Common Cause), June 28, 2019. The Supreme Court has declared the federal judiciary closed for business when it comes to partisan gerrymandering. Federal courts are now powerless to stop state officials from drawing electoral maps designed to keep themselves and their parties in power, at least so long as the districts created meet basic apportionment standards and can be justified on non-racist grounds. But many questions remain.

supreme court census decision ny daily news june 28 2019 CustomIs extreme partisan gerrymandering legal? Can it be stopped? How? And by whom? Although Congress could potentially provide some answers, most will come from the states — through maps drawn by state officials, laws passed by state legislatures, decisions issued by state courts under state laws and constitutions and votes cast in state elections. For better or worse, those rightfully concerned by the growing potency and sophistication of partisan districting efforts (a group that seemingly includes everyone except incumbent politicians) must now focus their concerns on these state political and legal processes.

In a 5-4 opinion written by the chief justice, the Supreme Court held that federal courts lack jurisdiction to resolve partisan-gerrymandering claims. In so doing, the court overruled—without acknowledgement—a six-justice majority’s holding in Davis v. Bandemer that partisan-gerrymandering claims are justiciable. As an aside, this treatment of Bandemer was somewhat surprising given the heated debates about stare decisis seen in this term’s earlier decisions in Franchise Tax Board of California v. Hyatt and Knick v. Township of Scott. Indeed, Paul Clement, representing the North Carolina defendants in Rucho v. Common Cause, frankly stated at oral argument — in response to a question from the chief justice — that finding in the state’s favor on justiciability would require overruling Bandemer. In any event, no majority of the court has ever agreed on the correct standard to review partisan-gerrymandering claims, in Bandemer or any case since, and it was this failure that led the majority to conclude that no workable standard exists. The court accordingly held that both Rucho and Lamone v. Benisek presented nonjusticiable political questions and ordered the cases dismissed for lack of jurisdiction.

Two things the court’s opinion did not do are worth noting. First, the court did not in any way bless the maps North Carolina and Maryland officials created in these cases. Rather it described them as “highly partisan, by any measure” and “blatant examples of partisanship driving districting decisions.”

Second, the court did not hold that extreme partisan gerrymandering is constitutional. Although it rejected the standards the lower courts applied, it did not seriously question the harms those standards sought to address. Instead, the court noted that excessive partisanship in districting leads to “unjust” results and is “incompatible with democratic principles.” In her dissenting opinion, Justice Elena Kagan argued forcefully—and the majority did not dispute—that these statements implicitly acknowledge that extreme partisan gerrymandering violates the constitution. But, she continued, “[f]or the first time in this Nation’s history, the majority declares it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.” So what next? As both the majority and the dissent observed—with different degrees of enthusiasm—any remedy for the harms caused by partisan gerrymandering must now come from either Congress or the states.

SCOTUSblog, Census symposium: Roberts Court stops the census citizenship question … for now, Andrew Pinson, Gerrymandering symposium: Time to find someone else to solve partisan gerrymandering, June 28, 2019. Andrew Pinson is the Solicitor General of Georgia. Georgia joined nine other states in filing an amicus brief in support of the appellants in Rucho v. Common Cause.

In the coming days, commentators will describe the Supreme Court’s decision in Rucho v. Common Cause and Lamone v. Benisek as one that will let “politicians pick their voters.” But that assigns the decision far too much blame. Politicians have been “picking their voters” with varying degrees of success since the dawn of our republic. The court only decided that you can’t make a federal case out of it. Far from blessing partisan gerrymandering, the court merely made clear — finally — that it’s a problem someone other than federal courts will have to solve.

The first question a federal court has to answer when parties come before it is whether the court has the power to hear their dispute. That power comes from Article III of the Constitution, which gives federal courts just one job: decide the “Cases” and “Controversies” that reach them. That language has long been understood as not just a grant of power to federal courts, but also a limitation, permitting them to address only those disputes “historically viewed as capable of resolution through the judicial process.” If a dispute presents a case or controversy, the federal court’s obligation to decide it is virtually unflagging. But if not, the court has to let it go.

In Rucho and Benisek, the Supreme Court concluded in an opinion authored by Chief Justice John Roberts that the Constitution does not give federal courts the power to resolve partisan-gerrymandering claims. The court formally grounded this holding in the political-question doctrine, an aspect of Article III’s case-or-controversy requirement that precludes federal courts from deciding disputes that have been committed to the political branches, or that do not involve “judicially enforceable rights.” That doctrine is admittedly amorphous, but the court’s reasoning is straightforward: The Constitution nowhere provides federal courts with authority to resolve the question partisan-gerrymandering claims pose — that is, whether state legislatures’ districting maps are sufficiently “fair” to particular political parties.

This conclusion followed in part from what little the Constitution says about districting. The elections clause provides that state legislatures may prescribe the “Times, Places and Manner of holding Elections,” and Congress has the power to check them by making laws that override their choices. In the court’s words, “[t]he only provision in the Constitution that specifically addresses the matter assigns it to the political branches.” This tells us at the least that the Constitution permits, even invites, political considerations in districting. And although the court rejected the argument that the elections clause removes federal courts from the districting arena altogether, without question it fails to carve out a role for courts or supply any limits on partisanship they can enforce.

Nor could the court discern judicially enforceable limits on partisan gerrymandering elsewhere in the Constitution. In the court’s view, partisan-gerrymandering claims bottom on intuitions about the unfairness of the practice that don’t square with any of the specific legal rights the Constitution’s text affords. The clearest example: Any description of partisan gerrymandering inevitably points out that the challenged map skews a party’s representation well past (and the other party’s well short of) its statewide numbers. (In Rucho, for instance, Republicans in North Carolina won 9 of 13 seats in 2012 with only 49 percent of the statewide vote.) But the court has long been clear that proportional representation — a political party being able to elect a percentage of representatives similar to its percentage of statewide support — is not something the Constitution requires. So no matter how parties package such claims (equal protection, free speech, freedom of association, etc.), none can stick, because their fundamental objection doesn’t describe any legal right the Constitution guarantees.

There is much more to the Supreme Court’s opinion, but in the end, the court was persuaded that, stripped of their trappings, partisan-gerrymandering claims really “ask courts to make their own political judgment about how much representation particular political parties deserve — based on the votes of their supporters — and to rearrange the challenged districts to achieve that end.” That, the court held, is not something federal courts are equipped or authorized to do, which left it with no choice but to dismiss these cases for lack of jurisdiction.

That result is no doubt unsatisfying for those who had held out hope that the court’s decades of hand-wringing about partisan gerrymandering would ever translate into meaningful limits enforceable by federal courts. And the concerns that animated that hope are not unfounded. The very idea of our elected representatives manipulating districts to choose voters who will keep them in power is unseemly, and the court is unanimous in its view that gerrymandering is “incompatible with democratic principles.” The practice might have begun as a tolerated feature of our democratic system, but the advance of technology may have transformed it into a latent bug, capable of real damage to democracy. And many fear that yesterday’s decision leaves that danger unchecked, because surely the political branches who benefit from gerrymandering won’t soon put a stop to it.

But these policy concerns, however well founded, do not in and of themselves provide federal courts with the power to solve them. The Constitution gives federal courts a lot of power, but only in the context of deciding disputed claims of legal right for the parties before them. Federal courts do not have the discretion to swoop in whenever they see bad policy or general unfairness, however fundamental the issue. And it should go without saying that a declaration that “no one else is going to fix it” does not provide federal courts with the power to resolve a dispute, even if it’s true.

Anyway, it’s not so clear that this decision will usher in a new era of increasingly extreme gerrymanders. As the court took pains to explain in Rucho and Benisek, its conclusion that federal courts cannot resolve partisan-gerrymandering claims does not “condemn complaints about districting to echo into a void.” At the federal level, Congress has express constitutional power to override state legislatures with respect to the “Time, Places and Manner” of holding elections. Congress was once active in this area; perhaps with hopes of federal courts doing that job for them now dashed, it will be again. As for the states, many are trying out a variety of ways to push back against partisan districting through legislation and referenda. It’s not so hard to imagine this very decision galvanizing people to seek change. And of course, being cases about federal courts’ power, Rucho and Benisek have nothing to say about state courts or state constitutions and any role they may have in this field.

Like the court, I “express no view on” the merits of any of these ideas. Rather, I include them only to sharpen the point that the court’s decision in these cases is not about whether or to what extent partisan gerrymandering can continue. Instead, it’s about who has the power to make that decision. After decades of back-and-forth, and in a show of restraint that is increasingly rare for federal courts today, the Supreme Court finally answered, “not us.”

washington post logoWashington Post, Opinion: John Roberts said there are no Trump judges or Obama judges. Clarence Thomas didn’t get the memo, Editorial Board, June 28, 2019.  Last November, President Trump, irate at a federal district court ruling contrary to his administration’s attempt to stop some migrants from seeking asylum at the border, blasted the judge, Jon S. Tigar, as a biased “Obama judge.”

Standing up for the integrity of the federal judiciary, of which he is the titular head, Chief Justice John G. Roberts Jr. issued an extraordinary statement contradicting Mr. Trump, albeit without naming him. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Mr. Roberts said . “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

clarence thomas w new officialSome of Mr. Roberts’s colleagues on the Supreme Court did not get the memo. Or so it would seem from the innuendo Justice Clarence Thomas aimed at U.S. District Judge Jesse Furman in an opinion dissenting from the court’s Wednesday ruling that upheld Mr. Furman’s decision to block a Trump administration plan to ask the citizenship of census respondents. Joined by Justices Brett M. Kavanaugh and Neil M. Gorsuch, Mr. Thomas blasted Mr. Furman’s finding — affirmed not only by Mr. Roberts but also four other justices — that Commerce Secretary Wilbur Ross had unlawfully misstated his true reasons for adding the question. Mr. Thomas went well beyond disputing Mr. Furman’s legal reasoning to questioning the district judge’s good faith, accusing him of “transparently” applying “an administration-specific standard.” He portrayed Mr. Furman’s presentation of evidence that Mr. Ross acted on a pretext as akin to “a conspiracy web,” that could be woven by “a judge predisposed to distrust the Secretary or the administration.”

Though couched in the indirect language of a legal opinion and its accompanying specialized notations, this was unmistakably a Trump-like insinuation that Mr. Furman, elevated to the federal bench by President Barack Obama in 2011, had ruled on his personal preferences rather than the law. Coming from a justice of the nation’s highest court, Mr. Thomas’s sour words regarding a lower-court colleague were not only destructive and unfounded. They were also self-contradictory, given that, elsewhere in the very same opinion, he faulted the court majority for “echoing the din of suspicion and distrust that seems to typify modern discourse.” For Mr. Kavanaugh and Mr. Gorsuch to join such an opinion was a lapse in self-awareness on their part, given how readily Democratic partisans accuse them of bias in favor of the president who appointed them — Mr. Trump.

Mr. Thomas’s ill-considered language undermined the defense of the judiciary that the chief justice had previously attempted to mount. And to what end? Mr. Thomas and his two colleagues could have made precisely the same legal argument without it. “The law requires a more impartial approach,” Mr. Thomas protested, referring to Mr. Furman’s ruling and the Supreme Court’s decision in favor of it. Actually, that admonition applies to him.

U.S. Courts, Crime

ny times logoNew York Times, Pregnant Alabama Woman Who Was Shot Is Charged in Fetus’s Death, Sarah Mervosh, June 28, 2019 (print ed.).
Marshae Jones was five months pregnant when she was shot in the stomach. The police say she started the fight that led to the shooting.

June 27

Court Permits Extreme Gerrymandering 

supreme court headshots 2019

Roll Call, Supreme Court won’t step in to partisan gerrymandering cases, Todd Ruger, June 27, 2019. Ruling will affect how congressional districts are redrawn after 2020 census.

A divided Supreme Court ruled 5-4 Thursday that federal courts can’t rein in politicians who draw political maps to entrench a partisan advantage, a decision that will influence the redrawing of congressional districts after the 2020 census.

The justices instead said that was a political question and gave that task to Congress and the states, pointing to efforts from House Democrats to require independent commissions to oversee redistricting in each state, as well as the handful of states where voters did the same through ballot initiatives.

The decision keeps the current congressional maps in North Carolina and Maryland. It bodes poorly for similar partisan gerrymandering challenges in Ohio and Michigan, where lower court judges had ordered new congressional districts.

Critics say the decision gives a green light to the state officials and lawmakers to carve up their states in a way that strips voters of the ability to choose who represents them in Congress or the statehouse.

ny times logoNew York Times, Supreme Court Leaves Citizenship Question on Census in Doubt, Adam Liptak, June 27, 2019. In a major setback for the White House, the Supreme Court on Thursday sent back to a lower court a case on whether the census should contain a citizenship question, leaving in doubt whether the question would be on the 2020 census.

john roberts oChief Justice John G. Roberts Jr., right, writing for the majority, said the explanation offered by the Trump administration for adding the question — asking whether a person is a citizen — was inadequate. But he left open the possibility that it could provide an adequate answer.

“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” the chief justice wrote. “Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

us census bureauThe practical impact of the decision was not immediately clear. While the question is barred for now, it is at least possible that the administration will be able to offer adequate justifications for it. But time is short, as the census forms must be printed shortly. The decision was fractured, but the key passage in the chief justice’s majority opinion was joined only by the court’s four-member liberal wing.

Government experts predicted that asking the question would cause many immigrants to refuse to participate in the census, leading to an undercount of about 6.5 million people. That could reduce Democratic representation when congressional districts are allocated in 2021 and affect how hundreds of billions of dollars in federal spending are distributed.

The administration’s stated reason for adding the question — to help enforce the Voting Rights Act of 1965 to protect minority voters — has been questioned by three federal judges. Recently discovered evidence from the computer files of a Republican strategist undermined the administration’s rationale and suggested that the true reason for the question was to help “Republicans and non-Hispanic whites.”

The case — United States Department of Commerce v. New York, No. 18-966 — has its roots in the text of the Constitution, which requires an “actual enumeration” every 10 years, with the House to be apportioned based on “the whole number of persons in each state.”

But the government has long used the census to gather information beyond raw population data. In 2020, for instance, the short form that goes to every household will include questions about sex, age, race and Hispanic or Latino origin. Some of those questions may discourage participation, too.

SCOTUSblog, Analysis:  A small win for James Kisor; a big loss for the Constitution, Corbin K. Barthold and Cory L. Andrews (counsel at the Washington Legal Foundation, which filed an amicus brief in support of the challenger in Kisor v. Wilkie), June 27, 2019. The question in Kisor v. Wilkie is whether a court must defer to an administrative agency’s plausible interpretation of its own ambiguous regulation. Auer v. Robbins says it must. Arguing that agencies shouldn’t be allowed both to write and authoritatively interpret their own rules, Kisor asked the Supreme Court to overrule Auer.

The ambiguous regulation in Kisor’s case is a rule that allows the Department of Veterans Affairs to retroactively grant a benefits claim after obtaining “relevant” records that existed, but were never considered, when the claim was denied.

Kisor argued that some papers documenting his combat experience are such “relevant” records. The government contended they aren’t, because whether Kisor partook in combat wasn’t a point of contention when the VA first denied his claim. According to the government, “relevant” doesn’t mean “relevant to an element of the veteran’s claim” but “relevant to the outcome of the dispute.” Concluding that the word “relevant” is ambiguous, the U.S. Court of Appeals for the Federal Circuit deferred to the government’s interpretation and affirmed the denial of retroactive benefits.

In a long, fragmented opinion with no dissents, the Supreme Court has vacated the judgment below and remanded the case for reconsideration. According to the majority, the Federal Circuit “jumped the gun” in declaring the VA’s rule ambiguous. What’s more, the appeals court shouldn’t have assumed that the VA’s interpretation implicated its substantive expertise in a “fair and considered judgment.”

With the wind at his back, Kisor may well go on to win the VA benefits he deserves. But his fight to abolish Auer deference — and to check the administrative state — is lost, at least for now.

Justice Elena Kagan (joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor), refuses to overrule Auer. Doing so would wipe out “a long line of precedents … going back 75 years or more.” And abandoning Auer would “cast doubt on many settled constructions of rules.” Besides, Congress is always free to alter or repeal Auer, if it so desires.

While reinforcing sound limits on the exercise of Auer deference (nearly all of which are grounded in earlier precedents), the majority insists that Auer “retains an important role in construing agency regulations.”

June 25

washington post logoWashington Post, Democrats say new interviews undercut Ross’s defense of census citizenship question, Felicia Sonmez and Tara Bahrampour, June 25, 2019. House Oversight Chairman Elijah E. Cummings (D-Md.) said evidence “points to a partisan and discriminatory effort” behind the push to add the question to the 2020 Census.

 ny times logoNew York Times, Reopened Legal Challenge to Census Citizenship Question Throws Case Into Chaos, Michael Wines, June 25, 2019. The battle over whether to add a citizenship question to the 2020 census was thrown into turmoil on Tuesday, just as the Supreme Court was expected to issue a ruling on the dispute this week.

us census bureauBy allowing a district judge to reopen a case related to the origin of the question, a federal appeals court raised the prospect that the federal government might be unable to meet a deadline for completing census questionnaires that include it, regardless of the Supreme Court’s ruling.

New hearings in the reopened case would stretch well beyond July 1, which is the deadline for printing the questionnaire and other forms. The Census Bureau has said that meeting that deadline is essential to conducting the national head count on time.

The case had appeared to be on a fast track to a resolution — until documents on the computer backups of a deceased Republican strategist, Thomas B. Hofeller, emerged last month. Those documents revealed new details about the genesis of the question, casting additional doubt on the Trump administration’s rationale for asking 2020 census respondents whether they are citizens.

June 24

USA Today, Supreme Court limits access to government records in loss for Argus Leader, part of the USA TODAY Network, Jonathan Ellis and Richard Wolf, June 24, 2019. The Supreme Court limited public and media access to government records Monday by expanding a federal law's definition of what can be deemed confidential.

At issue was whether confidentiality, as used in a section of the Freedom of Information Act, means anything intended to be kept secret or only information likely to cause harm if publicized. The high court adopted the broader definition.

Associate Justice Neil Gorsuch wrote the 6-3 decision, with Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor dissenting.

A retailers trade group, the Food Marketing Institute, and the federal government had argued for a broad definition that would leave ample room to keep data from the public. Media organizations and public interest groups favored a more narrow definition requiring harm, which would make confidentiality apply to fewer FOIA requests. In 2011, the case began with a request that the Argus Leader newspaper made under the Freedom of Information Act. The Sioux Falls, S.D., newsroom is part of the USA TODAY Network.

June 23

supreme court headshots 2019

washington post logoWashington Post, Supreme Court’s liberals, conservatives clash over keeping precedents, Robert Barnes, June 23, 2019 (print ed.). A lengthy back-and-forth between John G. Roberts Jr. and Elena Kagan seemed inspired by the liberal justices’ fear that the court’s increasingly conservative majority is on a campaign to remake the court’s precedents.

washington post logoWashington Post, Retropod: This security guard discovered the Watergate break-in, but few remember him, Host Mike Rosenwald, June 17, 2019 (3:14 mins). The man who called the police on the Watergate burglars never received the credit he deserved.

June 22

ny times logoNew York Times, What if People Who Can’t Vote Stop Counting Politically? Emily Badger, June 22, 2019. The resulting maps would tend to shift power to areas with more residents that are white and older.

Three years ago, before the Trump administration moved to add a citizenship question to the census, and before many experts even imagined what that might mean, the Supreme Court considered a case that raised a related question.

Democratic and Republican Campaigns DecodedTwo Texas voters had sued the state, saying their votes were diluted by a state redistricting map that gave equal weight to areas with fewer people allowed to vote. Political power, the plaintiffs claimed, should be divided only among the voting population, not among everyone.

us census bureauTheir preferred method, shared by a number of conservative politicians, would erase from state political maps not only noncitizens, but also children — two groups that aren’t evenly distributed across states. The resulting maps would tend to shift power from the places where children and noncitizens are more plentiful to places where there are more older and white residents. At the state level, such maps would also strip from these groups a principle as old as the Constitution: that even someone who cannot vote still deserves representation.

In that 2016 case, Evenwel v. Abbott, the court unanimously ruled that Texas could draw legislative districts by total population, the method every state has long used. But the justices left open the question of whether states must do this, or if — and this is where the citizenship question comes in — they can draw maps that count only voting-age citizens.

June 21

ny times logoNew York Times, Excluding Black Jurors Violated Constitution, Supreme Court Rules, Adam Liptak, June 21, 2019. A white Mississippi prosecutor violated the Constitution by excluding black jurors from the sixth trial of Curtis Flowers. Mr. Flowers, a death row inmate in Mississippi, has been tried six times by a white prosecutor with a record of striking black potential jurors.

A white Mississippi prosecutor violated the Constitution by excluding black jurors from the sixth trial of Curtis Flowers, a black man who was convicted of murdering four people in 1996 in a furniture store, the Supreme Court ruled on Friday.

brett kavanaughJustice Brett M. Kavanaugh, right, writing for a seven-justice majority, said the prosecutor, Doug Evans, had run afoul of the court’s 1986 decision in Batson v. Kentucky.

“Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process,” Justice Kavanaugh wrote. “Enforcing that supreme court graphicconstitutional principle, Batson ended the widespread practice in which prosecutors could (and often would) routinely strike all black prospective jurors in cases involving black defendants.”

Chief Justice John G. Roberts’s decision to assign the majority opinion in a high-profile case to the court’s newest member may have been prompted by Justice Kavanaugh’s longstanding interest in race discrimination in jury selection. When he was a law student at Yale, Justice Kavanaugh wrote an article in Yale Law Journal calling for vigorous enforcement of the Batson decision.

That ruling carved out an exception to the centuries-old rule that peremptory challenges during jury selection — ones that do not require giving a reason — are completely discretionary and cannot be second-guessed.

The New Yorker, Analysis: Clarence Thomas’s Astonishing Opinion on a Racist Mississippi Prosecutor, Jeffrey Toobin, June 21, 2019.  Justice Clarence Thomas filed a dissenting opinion new yorker logoon the Flowers v. Mississippi case, regarding its racially biased prosecutor.

clarence thomas w new officialA Mississippi prosecutor went on a racist crusade to have a black man executed. Clarence Thomas thinks that was just fine.

That’s the message of an astonishing decision today from the Supreme Court. The facts of the case, known as Flowers v. Mississippi, are straightforward.

As Justice Brett Kavanaugh put it, in his admirably blunt opinion for the Court, “In 1996, Curtis Flowers (shown below left) allegedly murdered four people in Winona, Mississippi. Flowers is black. He has been tried six separate times before a jury for murder. The same lead prosecutor represented the State in all six trials.”

Flowers was convicted in the first three trials, and sentenced to death. On each occasion, his conviction was overturned by the Mississippi Supreme Court, on the grounds of misconduct by the prosecutor, Doug Evans, mostly in the form of keeping African-Americans off the juries. Trials four and five ended in hung juries. In the sixth trial, the one that was before the Supreme Court, Flowers was convicted, but the Justices found that Evans had again discriminated against black people, and thus Flowers, in jury selection, and they overturned his conviction. (The breathtaking facts of the case and its accompanying legal saga are described at length on the American Public Media podcast “In the Dark.”)

curtis flowersAs Kavanaugh recounted in his opinion, Evans’s actions were almost cartoonishly racist. To wit: in the six trials, the State employed its peremptory challenges (that is, challenges for which no reason need be given) to strike forty-one out of forty-two African-American prospective jurors. In the most recent trial, the State exercised peremptory strikes against five of six black prospective jurors. In addition, Evans questioned black prospective jurors a great deal more closely than he questioned whites. As Kavanaugh observed, with considerable understatement, “A court confronting that kind of pattern cannot ignore it.“

But Thomas can, and he did. Indeed, he filed a dissenting opinion that was genuinely outraged — not by the prosecutor but by his fellow-Justices, who dared to grant relief to Flowers, who has spent more than two decades in solitary confinement at Mississippi’s notorious Parchman prison. Thomas said that the prosecutor’s behavior was blameless, and he practically sneered at his colleagues, asserting that the majority had decided the Flowers case to “boost its self-esteem.” Thomas also found a way to blame the news media for the result. “Perhaps the Court granted certiorari because the case has received a fair amount of media attention,” he wrote, adding that “the media often seeks to titillate rather than to educate and inform.”

ny times logoadam liptakNew York Times, The Supreme Court’s Biggest Decisions in 2019, Adam Liptak, right, and Jason Kao, June 21, 2019. The Supreme Court was transformed this term by the departure of Justice Anthony M. Kennedy, its longtime swing vote, and the arrival of his more conservative successor, Justice Brett M. Kavanaugh. Here are some of the term's most important cases, ones that will help chart the future of a court in transition.

June 20

ny times logoNew York Times, Opinion: The Supreme Court Is Showing an Instinct for Self-Preservation, at Least Until Next Year’s Election, Linda Greenhouse, June 20, 2019. The court has passed on contentious cases about abortion and the rights of same-sex couples. Will it now drop the census case?

As the world knows, the deeply contested question of the validity of the Trump administration’s plan to ask about citizenship has become even more fraught with revelations us census bureaufrom the computer files of a recently deceased Republican redistricting specialist, Thomas Hofeller.

The documents appear to validate the conclusion reached by Federal District Judge Jesse Furman, whose ruling against the Trump administration is before the justices, that the administration’s purported good-government reason for adding the citizenship question was a pretext.

The real reason, the documents indicate, was to provide a statistical basis for entrenching Republican power by disregarding noncitizens in the population counts for future redistricting.

washington post logoWashington Post, Supreme Court rules that ‘Peace Cross’ honoring military dead may remain on public land, Robert Barnes​, June 20, 2019. The Supreme Court ruled Thursday that a 40-foot cross erected as a tribute to war dead may continue to stand on public land in Maryland, rejecting arguments that it was an unconstitutional endorsement of religion.

The vote was 7 to 2, but the ruling prompted an outpouring of individual opinions as the court struggled to explain what should be done with public displays that feature religious imagery.

Justice Samuel A. Alito Jr. wrote the main opinion and said history and tradition must be taken into account when judging modern objections to monuments on public land.

“The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent,” Alito wrote. “For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark.

June 17

nbc news logoNBC News, Supreme Court declines to change double jeopardy rule in a case with Manafort implications, Pete Williams, June 17, 2019. Trump's former campaign manager might have been helped if the case involving an Alabama man on gun and robbery charges had been overturned. The Supreme Court declined on Monday to change the longstanding rule that says putting someone on trial more than once for the same crime does not violate the Constitution's protection against double jeopardy — a case that drew attention because of its possible implications for President Donald Trump's former campaign chairman, Paul Manafort.

The 7-2 ruling was a defeat for an Alabama man, Terance Gamble, convicted of robbery in 2008 and pulled over seven years later for a traffic violation. When police found a handgun in his car, he was prosecuted under Alabama's law barring felons from possessing firearms. The local U.S. attorney then charged Gamble with violating a similar federal law. Because of the added federal conviction, his prison sentence was extended by nearly three years.

June 16

washington post logoWashington Post, After assuring that the Supreme Court is apolitical, chief justice faces major test, Robert Barnes, June 16, 2019. Chief Justice John Roberts will play a pivotal john roberts orole in two of the most politically consequential decisions in years. Chief Justice John G. Roberts Jr., right, began the Supreme Court’s term last fall seeking to assure the American public that his court does not “serve one party or one interest.”

He will end it playing a pivotal role in two of the most politically consequential decisions the court has made in years.

us census bureauOne initiative is to include a citizenship question in the 2020 Census, which has fueled a partisan showdown on Capitol Hill. The other could outlaw the partisan gerrymandering techniques that were essential to Republican dominance at the state and congressional level over the past decade.

The politically weighted decisions, by a court in which the five conservatives were chosen by Republican presidents and the four liberals were nominated by Democrats, threaten to undermine Roberts’s efforts to portray the court as independent.

ny times logoNew York Times, Opinion: Trump’s Abuse of Executive Privilege Is More Than a Present Danger, Neal K. Katyal (shown at right and former U.S. Solicitor General), June 17, neal katyal o2019. He’s probably making it harder for future presidents to govern. President Trump has been on an executive privilege extravaganza. In the past month, he’s asserted it to block Congress from obtaining documents about the census citizenship question, invoked it to try to bar the full Mueller report from being given to Congress, and used it to bar his former White House counsel, Don McGahn, from providing documents to Congress.

Executive privilege has a legitimate core, but Mr. Trump’s attempts are going to wind up undermining that core, and make it harder for future presidents to govern. He is essentially saying that he will not turn over information to Congress about potential wrongdoing — the absolute weakest claim to executive privilege along the spectrum of possible claims.

Our constitutional system is defined by a balance between the public’s need for transparency and the government’s need to have a zone of secrecy around decision making. Both are important, yet they are mutually exclusive. The Constitution erred on the side of transparency, with no mention whatsoever of executive privilege in its original text. But the experience of constitutional government (what some might call a “living Constitution”) is that presidents over time have found a need for their advisers to give them frank information without fear of embarrassment, and the privilege has been used for these sorts of routine matters, by both Democratic and Republic presidents alike.

June 10

SCOTUSblog, Analysis: FAQs -- Announcements of orders and opinions, Amy Howe, June 10, 2019. This post — which is an updated version of posts that we have published in earlier terms — addresses some of the questions about orders and opinion announcements that we have commonly received during our live blogs. If you have a question that you don’t see answered here, please feel free to ask it during today’s live blog.

Question: What opinions will the court issue today?

Answer: Unlike some other courts, the Supreme Court doesn’t announce in advance which cases will be decided on a particular day. So normally, we don’t know which opinions we will get on a particular day. The only time we have a good sense is the very last day, when the court issues its final rulings.

Question: How many opinions will the court issue?

Answer: The court also does not announce in advance how many opinions it expects to release on any particular day.

Question: What’s the last day the court will issue opinions?

Answer: We don’t know what the last day of the term will be. Monday, June 24, is currently the last day that the justices are scheduled to sit on the bench, but if they haven’t released all of their opinions by then, they could add additional decision days.

June 7

Huffpost, Ruth Bader Ginsburg Talks Census Case, Suggests 5-4 Supreme Court Rulings To Come, Antonia Blumberg, June 7, 2019. Supreme Court Justice Ruth Bader Ginsburg suggested on Friday that the high court would soon be announcing several close rulings. In prepared remarks delivered at the Second Circuit Judicial Conference, Ginsburg discussed several prominent cases argued this term in which decisions have yet to be released, including one on the hotly contested 2020 census.

ruth bader ginsburg newer photo unsourcedThe census case revolves around the Trump administration’s effort to add a question on the 2020 form asking every American household to identify the citizens and non-citizens among them. The administration has argued it needs to ask the question in order to compile better data to enforce the 1965 Voting Rights Act.

Ginsburg, shown left in a file photo, noted that the high court has yet to announce its rulings in 27 cases, all of which will likely be coming out this month.

Among the other closely watched cases will be the court’s ruling on the constitutionality of partisan gerrymandering, a practice by which lawmakers set boundaries for electoral districts to ensure their party’s candidates win more races.

June 4

U.S. Supreme Court / Census / Elections

Howe on the Court, Government responds in census citizenship case, Amy Howe, June 4, 2019. Last week the challengers in the dispute over the decision to include a question about citizenship on the 2020 census notified the Supreme Court about new evidence. The new evidence, the challengers argued, indicated that a Republican redistricting strategist played a key role in the decision, which was intended to create an advantage for whites and Republicans in future elections. Yesterday the Trump administration pushed back, calling the challengers’ accusations “meritless” and an “eleventh-hour” effort to “derail the Supreme Court’s resolution of this case.”

us census bureauThe government’s contentions came in its response to the challengers’ motion, made in a federal district court in New York, suggesting that the government should be sanctioned because the new evidence contradicts testimony and representations by government officials in the case. The response was attached to a letter sent to the Supreme Court yesterday by Noel Francisco, the U.S. solicitor general.

In the five-page, single-spaced response, the government dismisses as “false” the challengers’ claim that a senior Department of Justice official, John Gore, relied on a 2015 study by the Republican strategist, Thomas Hofeller, when Gore drafted a 2017 letter asking the Department of Commerce to include the citizenship question. “There is no smoking gun here,” the government stresses; “only smoke and mirrors.”

If the 2017 letter resembles anything, the government suggests, it is “friend of the court” briefs filed in a 2016 case in which the Supreme Court had been asked to decide whether total population or the number of eligible voters should be used to determine whether state legislative districts have equal populations. (Nathaniel Persily, the Stanford law professor who was the author of one of the briefs cited by the government, described himself as “outraged” that his work was “being misrepresented” by the government.)



May 30

GOP Vote Suppression Scandal

washington post logoWashington Post, Evidence suggests citizenship question crafted to benefit white Republicans, Tara Bahrampour and Robert Barnes​, May 30, 2019. Files discovered by the estranged daughter of a late GOP redistricting strategist indicate that plans to add the citizenship question to the census date to 2015 and then were pushed after President Trump took office.

Just weeks before the Supreme Court is expected to rule on whether the Trump administration can add a citizenship question to the 2020 Census, new evidence emerged Thursday suggesting the question was crafted specifically to give an electoral advantage to white Republicans.

The evidence was found in the files of the prominent Republican redistricting strategist Thomas Hofeller after his death in August. It reveals that Hofeller “played a significant role in orchestrating the addition of the citizenship question to the 2020 Decennial Census in order to create a structural electoral advantage for, in his own words, ‘Republicans and Non-Hispanic Whites,’ ” and that Trump administration officials purposely obscured Hofeller’s role in court proceedings, lawyers for plaintiffs challenging the question wrote in a letter to U.S. District Judge Jesse M. Furman. Furman was one of three federal judges who ruled against the question this year.

The letter drew on new information discovered on hard drives belonging to Hofeller, which were found accidentally by Hofeller’s estranged daughter. Stephanie Hofeller Lizon then shared them with the organization Common Cause for a gerrymandering lawsuit it is pursuing in North Carolina.

The American Civil Liberties Union filed a motion in district court Thursday morning for “sanctions and any other relief the court deems appropriate, because of apparently untruthful testimony” by Trump administration officials in the earlier trials, said Dale Ho, who argued the case at the Supreme Court on behalf of the ACLU.

It is unclear how the information might affect deliberations at the Supreme Court. The ACLU Thursday afternoon filed a letter with the court to “respectfully inform” it of the motion filed in the New York district court and that a hearing was scheduled for next week.

May 29

More Supreme Court  Packing?

washington post logoWashington Post, McConnell says he would fill a Supreme Court vacancy even if it comes during an election year, Reis Thebault, May 29, 2019. The Senate Majority Leader mitch mcconnell2held up a nomination by President Obama in 2016, saying then that “the American people should have a voice in the selection of their next Supreme Court Justice.” When President Obama nominated Judge Merrick Garland to the Supreme Court in 2016, Senate Majority Leader Mitch McConnell (R-Ky.), right, refused to consider him, blocking the nominee until after the year’s presidential election.

He said then that “the American people should have a voice in the selection of their next Supreme Court Justice.” The tactic cost Garland his spot on the court.

With his party now in the White House, McConnell said Tuesday he’d try to push through any nomination that President Trump might make to the high court — even if it comes during an election year. Some saw that stance, which McConnell has signaled before, as disingenuous.GOP

May 28

washington post logoWashington Post, Supreme Court ruling on Indiana abortion law keeps issue off its docket, Robert Barnes​, Robert Barnes, May 28, 2019. The court said a part of the law dealing with disposal of the “remains” of an abortion could go into effect. But it did not take up the prohibition on abortions when tests revealed an abnormality.

The court said a part of the law dealing with disposal of the “remains” of an abortion could go into effect. But it did not take up a part of the law stricken by lower courts that prohibited abortions because tests revealed an abnormality. The court indicated it would wait for other courts to weigh in before taking up that issue.

May 25

washington post logoWashington Post, New electoral maps for Ohio and Michigan can wait, Supreme Court says, Robert Barnes, May 25, 2019 (print ed.). While they consider the question of partisan gerrymandering, the justices put lower-court decisions finding those states’ maps unconstitutional on hold. The Supreme Court on Friday put on hold lower-court decisions that said Ohio and Michigan had to come up with new electoral maps because of unconstitutional partisan gerrymandering.

The decision was not surprising, because the justices are currently considering whether judges should even have a role in policing partisan gerrymandering. There were no noted dissents in the orders for either state.

supreme court graphicThe Supreme Court in March heard arguments in similar cases from North Carolina, where judges found that Republicans had manipulated congressional maps to their advantage, and from Maryland, where Democratic lawmakers redrew a district that resulted in a loss for a longtime Republican congressman.

While the Supreme Court regularly examines redistricting plans for signs of racial gerrymandering, it has never found a state’s plan so infected with partisan politics that it violates the rights of voters. The decision in the North Carolina and Maryland cases are expected before the end of June.

With the decisions from Ohio and Michigan, federal courts in five states have struck down maps as partisan gerrymanders. The courts in the Ohio and Michigan decisions ordered the states to come up with new maps that could be used in the 2020 elections.

But lawyers for the states argued that would be foolhardy until the Supreme Court has ruled. Lawyers for Ohio told the court that the legislature there should not have to “waste its time on a difficult legislative activity likely to prove entirely unnecessary.”

May 22

Covert U.S. Justice System Controls

washington post logoWashington Post, Investigation: A conservative’s campaign to remake U.S. courts, Robert O'Harrow Jr. and Shawn Boburg, May 22, 2019 (print ed.). Few people outside government have more influence over judicial appointments than Leonard Leo, right, an unofficial adviser to President Trump who has helped nonprofits raise $250 million from leonard leomostly undisclosed donors to promote conservative judges and causes.

For two decades, Leo has been on a mission to turn back the clock to a time before the U.S. Supreme Court routinely expanded the government’s authority and endorsed new rights such as abortion and same-sex marriage. Now, as President Trump’s unofficial judicial adviser, he told the audience at the closed-door event in February that they had to mobilize in “very unprecedented ways” to help finish the job.

At a time when Trump and Senate Majority Leader Mitch McConnell are rapidly reshaping federal courts by installing conservative judges and Supreme Court federalist society logojustices, few people outside government have more influence over judicial appointments now than Leo.

He is widely known as a confidant to Trump and as executive vice president of the Federalist Society, an influential nonprofit organization for conservative and libertarian lawyers that has close ties to Supreme Court justices. But behind the scenes, Leo is the maestro of a network of interlocking nonprofits working on media campaigns and other initiatives to sway lawmakers by generating public support for conservative judges.

The story of Leo’s rise offers an inside look into the modern machinery of political persuasion. It shows how undisclosed interests outside of government are harnessing the nation’s nonprofit system to influence judicial appointments that will shape the nation for decades.

May 16

washington post logoWashington Post, Opinion: The obsession with redaction is hiding the obvious: Trump committed crimes, Walter Dellinger, May 16, 2019 (print ed.). Walter Dellinger, 78, shown at right in a 1996 file photo, was head of the Office of Legal Counsel from 1993 to 1996 and acting solicitor general from 1996 to 1997. I have become increasingly concerned about how the walter dellinger 1996country has received the Mueller report. The Republican talking point is that it exonerated the president. The message from the Democratic House, meanwhile, is that the report is inconclusive. Those responses, one mendacious, one tepid and both erroneous, have shaped public understanding. They have not only allowed the president falsely to claim vindication but also left the public without a clear understanding of just how damning the report is.

Most Americans, understandably not having read the 448-page (redacted) report, may be influenced by how the principal parties have responded. If the report were, as the Republicans insist, an exoneration, one might demand to know how this unwarranted investigation got started in the first place, which is exactly how the GOP has proceeded to turn the conversation.

And if you thought the report was merely inconclusive, your natural reaction would be that you need to know more. You would say something like what many House Democrats are repeating endlessly: “We need to see the redactions” and “hear from witnesses” — suggesting that there is as of yet no sufficient basis for judging President Trump’s conduct.

The more I review the report, the more absurd and misleading the we-need-to-know-more response seems to be. And the more it seems to have contributed to public misunderstanding. How different would it have been if a unified chorus of Democratic leaders in Congress and on the campaign trail had promptly proclaimed the actual truth: This report makes the unquestionable case that the president regularly and audaciously violated his oath and committed the most serious high crimes and misdemeanors.

washington post logoWashington Post, Democrats adhere to Pelosi’s no-impeachment strategy despite Trump’s defiance, Rachael Bade and Mike DeBonis, May 16, 2019 (print ed.). Several rank-nancy pelosiand-file lawmakers want to begin impeachment proceedings. President Trump, who is refusing to cooperate with more than 20 congressional investigations, instructed current and former aides Wednesday to ignore a House committee’s request for documents in the latest act of defiance that has prompted Democrats to declare that the nation is facing a constitutional crisis.

But House Speaker Nancy Pelosi (D-Calif.), right, told Democrats in a closed-door caucus meeting Wednesday morning to stick to their policy agenda ahead of the 2020 election rather than initiate impeachment proceedings. And not a single lawmaker challenged her, according to a person in the room who spoke on the condition of anonymity to discuss the private meeting.

May 13

U.S. Supreme Court\

washington post logoWashington Post, Abortion extremists make fools of Kavanaugh defenders, Jennifer Rubin, right, May 13, 2019. During the confirmation fight for Justice Brett M. Kavanaugh, abortion jennifer rubin new headshotrights activists warned that with his ascension to the Supreme Court, abortions would be criminalized, putting at risk the health and lives of thousands of women who, like their grandmothers’ generation, would be forced to resort to back-alley abortions if they did not have the means to travel hundreds or thousands of miles to a state where abortion was legal.

Kavanaugh’s defenders called such claims hysterical and disingenuous. Although Kavanaugh was put on a list blessed by pro-life groups and had questioned the jurisprudence behind Roe v. Wade, his defenders argued that he wouldn’t approve state laws that went so far as to ban abortion. On the other side, women’s susan collins official Smallgroups pointed to pro-lifers’ decades-long commitment to ending legal abortions based on equating any abortion with murder.

Sen. Susan Collins (R-Maine), left, risked her decades-long reputation as a pro-choice Republican and her prospects for reelection in 2020 by voting to confirm Kavanaugh and spouting the pro-lifers’ line that legal abortion wasn’t really at risk.

We now are seeing the full impact of confirming a justice who could eviscerate Roe. The very type of legislation Kavanaugh defenders claimed were not in the cards was passed in Georgia and is poised to pass in Alabama. State lawmakers are now emboldened to pass laws effectively outlawing abortion with the hope that this Supreme Court will now uphold them.

washington post logoWashington Post, Supreme Court’s conservative justices overturn 41-year-old precedent, Robert Barnes​, May 13, 2019. The Supreme Court’s conservative majority overturned a 41-year-old precedent Monday, prompting a pointed warning from liberal justices about “which cases the court will overrule next.”

clarence thomas w new officialThe issue in Monday’s 5 to 4 ruling was one of limited impact: whether states have sovereign immunity from private lawsuits in the courts of other states. In 1979, the Supreme Court ruled that there is no constitutional right to such immunity, although states are free to extend it to one another and often do.

But the court’s conservative majority overruled that decision, saying there was an implied right in the Constitution that means states “could not be haled involuntarily before each other’s courts,” in the words of Justice Clarence Thomas, right, who wrote Monday’s decision.

Thomas acknowledged the departure from the legal doctrine of stare decisis, in which courts are to abide by settled law without a compelling reason to overrule the decision.

ny times logoNew York Times, Trump’s Justices, With Much in Common, Take Different Paths, Adam Liptak, May 13, 2019 (print ed.). Justice Neil M. Gorsuch, below left, and Justice Brett M. brett kavanaughKavanaugh, right, President Trump’s Supreme Court appointees, were widely expected to be jurisprudential twins. Both justices lean right, but they are revealing themselves to be different kinds of conservatives in both style and substance.

President Trump’s two Supreme Court appointees went to the same Jesuit high school in the Washington suburbs — at the same time. After attending Ivy neil gorsuch headshotLeague colleges and law schools, they worked as law clerks on the Supreme Court — for the same justice, in the same term.

They served as appeals court judges for more than a decade, turning out opinions that captured the attention of conservative legal groups like the Federalist Society and the Heritage Foundation. They were confirmed by tight votes, mostly along party lines.

On the Supreme Court, they were widely expected to be jurisprudential twins. But it turns out that there is more than a little daylight between Justice Neil M. Gorsuch, who joined the court in 2017, and Justice Brett M. Kavanaugh, who started in October after facing accusations of sexual assault, which he denied, at his confirmation hearings.

 washington post logoWashington Post, Supreme Court rules against Apple, allowing lawsuit targeting App Store to proceed, Tony Romm and Robert Barnes, May 13, 2019. Apple suffered a significant defeat at the Supreme Court on Monday, when the justices ruled that consumers could forge ahead with a lawsuit against the tech giant over the way it manages its App Store.

apple logo rainbowThe 5-4 decision allows device owners to proceed with a case that alleges Apple has acted as a monopoly by requiring iPhone and iPad users to download apps only from its portal while taking a cut of some sales made through the store.

The ruling could have serious repercussions for one of Apple’s most lucrative lines of business, while opening the door for similar legal action targeting other tech giants in Silicon Valley. But the court’s opinion — led by conservative Justice Brett M. Kavanaugh, who joined its liberal justices in the majority — did not rule on the merits of the lawsuit itself.

ny times logoNew York Times, Accused of ‘Terrorism’ for Putting Legal Materials Online, Adam Liptak, May 13, 2019. After Carl Malamud posted Georgia’s annotated laws, the state sued for copyright infringement. Both sides have asked the Supreme Court to step in. 

Carl Malamud believes in open access to government records, and he has spent more than a decade putting them online. You might think states would welcome the help.But when Mr. Malamud’s group posted the Official Code of Georgia Annotated, the state sued for copyright infringement. Providing public access to the state’s laws and related legal materials, Georgia’s lawyers said, was part of a “strategy of terrorism.”

A federal appeals court ruled against the state, which has asked the Supreme Court to step in. On Friday, in an unusual move, Mr. Malamud’s group, Public.Resource.Org, also urged the court to hear the dispute, saying that the question of who owns the law is an urgent one, as about 20 other states have claimed that parts of similar annotated codes are copyrighted.

The issue, the group said, is whether citizens can have access to “the raw materials of our democracy.”

The state, through a legal publisher, makes the statutes themselves available online, and it has said it does not object to Mr. Malamud doing the same thing. But people who want to see other materials in the books, the state says, must pay the publisher.

This is part of a disturbing trend, according to a new law review article, “Who Owns the Law? Why We Must Restore Public Ownership of Legal Publishing,” by Leslie Street, a law professor and librarian at Mercer University in Macon, Ga., and David Hansen, a librarian at Duke. It will be published in The Journal of Intellectual Property Law.

States have struck deals with legal publishers, the article said, that have effectively privatized the law.

May 11

U.S. Courts Transformation

The Guardian, All the president’s judges: how Trump can flip courts at a record-setting pace, Tom McCarthy, May 11, 2019. As the Senate confirms nearly 40 circuit court nominees and counting, the third circuit has already moved rightward – which can change the US for decades.

mike pence oMike Pence’s eyes twinkled with the applause line he was about to deliver. Speaking in Washington on Wednesday at an annual conference of the Federalist Society, the conservative legal group, the vice-president had great news to share. Earlier that day, the Senate had confirmed yet another circuit court judge nominated by Donald Trump, bringing his grand total to 38, neatly doubling the 19 judges at that level that Barack Obama saw confirmed by the same stage of his presidency.

But Pence, shown at right, had an even juicier number to boast of: the week before, thanks to a flurry of activity in the Senate engineered by the majority leader, Mitch McConnell, the number of confirmed Trump appointees to federal judgeships had hit triple digits. “This president has actually appointed more than 100 men and women to our federal courts, including more circuit court judges than any president in American history,” said Pence, slowing his pace to deliver the kicker: “And they are all conservatives who are committed to the principles enshrined in the constitution of the United States!”

Pence was drowned in applause before he could finish the sentence. But watchdog groups warn that by “conservative,” Pence was referring to more than just a particular flavor of jurisprudence. He meant judges eager to see through fundamental changes in American life, from the criminalization of abortion to the gutting of LGBTQ rights and environmental protections, the reversal of healthcare reform, the sidelining of workers and the endorsement of religious discrimination.

Dissenting View: “These nominees have records of working tirelessly to undermine access to healthcare, access to reproductive rights for women, who want to undermine critical protections for workers, for clean air and clean water that consumers rely on,” said Daniel Goldberg, the legal director at the Alliance For Justice.

“The people who are going to suffer are the millions of people around the country who rely on these critical, essential legal rights and protections that for the next three or four decades are going to be seriously eroded.”

May 6

Harvard Law Today, Book Review: A Precarious State -- A new book warns that institutional corruption is corroding our nation, Lewis Rice, May 6, 2019. Think of an honest used car salesperson. The very idea might seem like an oxymoron. That’s not because no honest people ever sell cars. It’s because the profession as a whole is not considered trustworthy by the public.

What if that sense of mistrust were not limited to the used car lot but had spread to institutions the public relies on every day?

larry lessigIt has, according to Harvard Law School Professor Lawrence Lessig, left, and he sounds the alarm about the damage it is doing to the nation in his new book, “America, Compromised.”

Lessig has previously written on what he calls the “institutional corruption” of Congress, whereby members are most responsive to the needs of a small cadre of funders rather than their constituents. In this book, he contends that corruption also pervades finance, the media, the academy and the law.

“Those institutions fail to the extent that people have a deep mistrust of [them],” Lessig said in an interview. “This dimension of public trust is an essential part of what I set out as the problem of institutional corruption.”

The book came out of Lessig’s experience directing Harvard’s Edmond J. Safra Center for Ethics, where he launched a related project, and is based on a lecture series he gave about the results. As he makes clear, his labeling an institution as corrupt does not mean that he believes the people within it are evil. In fact, he argues that the problem of evil people doing bad deeds is dwarfed by the problem of good people who are compromised, typically by a financial influence that skews the intended purpose of the institution.

That could mean prosecutors who make deals with corporations rather than prosecuting them in order to be considered for a much higher-paying job in the future with a white-collar defense firm; academic researchers who publish more favorable results when funded by an industry that would benefit from that conclusion; journalists whose coverage is driven by what would be most profitable rather than what would inform the citizenry; or financial rating agencies that offer favorable ratings instead of objective analyses in order to secure business.

These kinds of compromises weaken the effectiveness of the institutions and contribute to a national decline, Lessig contends. He offers potential remedies to the problem, ranging from increased regulation of finance to establishing a general pooled fund for academic researchers so they would not know who was funding their work.

Lessig has long called for public financing of political campaigns, and he explored a presidential run in the last election to make that his central plank (he dropped out when the Democratic National Committee wouldn’t allow him to participate in the candidates’ debate). He hasn’t decided whether he will pursue a run in 2020 but doesn’t see any other candidate who would prioritize campaign finance reform.


April 28

supreme court building

washington post logoWashington Post, Trump sees Supreme Court as ally, sowing doubt about its independence, Robert Barnes and Josh Dawsey, April 28, 2019 (print ed.). The president’s tweet john roberts oon impeachment exacerbates a dilemma facing Chief Justice John G. Roberts Jr., right, who took the unprecedented step of publicly admonishing President Trump last year.

The morning after the Supreme Court reviewed his administration’s most important case of the term, President Trump informed the justices he might have another task for them.

“I DID NOTHING WRONG,” Trump tweeted Wednesday. “If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court.”

Constitutional experts immediately derided Trump’s faulty legal analysis. But the more striking message, the day after the court considered the administration’s plan to put a citizenship question on the 2020 Census, seemed to be Trump’s consistent theme that he views the nation’s highest court as an ally, and safeguard against lower court defeats and congressional opponents.

His administration’s lawyers have tried to leapfrog the legal process to seek the high court’s quick review of adverse rulings and nationwide injunctions by lower courts, which they say handicap Trump’s initiatives in numbers that can’t be defended. They are ready, too, to go to court as the president resists demands from congressional Democrats investigating his conduct, business dealings and personal finances .

April 21

washington post logoWashington Post, Supreme Court will examine high-stakes census case this week, Robert Barnes, April 21, 2019.  The administration’s controversial plan to include a citizenship question on the 2020 form could affect the size of each state’s congressional delegation and how federal aid is distributed.

The Supreme Court this week takes up the most consequential Trump administration initiative since last term’s travel ban, with the justices considering whether a question about citizenship can be added to the 2020 Census.

The restrictions on travelers from certain majority-Muslim countries was approved last June by a five-member conservative majority deferential to President Trump’s power to decide who enters the country. And the administration has been anxious to move to the high court the legal battle over another issue that reflects its hard-line immigration policies.

A coalition of Democratic-led states, cities and civil rights organizations oppose the effort, saying the question is a political move that will intimidate households with ties to noncitizens and result in an undercount that will harm the nonpartisan goal of getting an accurate tally of everyone in the country.

April 14

Immigration Justice Realities

washington post logoWashington Post, Opinion: I’m an immigration judge. Here’s how we can fix our courts, Dana Leigh Marks, April 14, 2019 (print ed.). Dana Leigh Marks has been a sitting immigration judge in San Francisco since 1987 and is writing this in her capacity as president emerita of the National Association of Immigration Judges.

Every day, in 60 courts throughout the country, roughly 400 immigration judges sit to decide the fates of thousands of people. Our courtrooms can be almost anywhere: in Immigration and Customs Enforcement detention facilities, in federal courthouses or in leased commercial office spaces — like mine in the heart of the financial district in San Francisco. Walking by, you wouldn’t know what is going on inside.

What occurs in immigration courts is probably the most mysterious of all legal processes in our country. The reason: These are administrative courts, part of the Justice Department rather than the judicial branch. The rules we operate under are written by political appointees, not by judges, and often favor the government.

Our courts’ decisions are life-changing. We rule on whether a person is a U.S. citizen, whether a noncitizen can qualify for a status that allows him or her to remain in this country, or whether a person has violated our laws and must be forced to leave. Our decisions may cause the separation of parents and children or husbands and wives, because the law gives judges no discretion to allow someone to remain in our country based solely on hardship or humanitarian reasons.

And, at times, the decisions can amount to a death sentence, such as when we deny an application for asylum because the law does not protect all those who find themselves in harm’s way back home.

The volume of work can be overwhelming. Some of our judges carry caseloads of 5,000 cases or more, usually with limited support staff. Because we work for the Justice Department, we are directed how to arrange our dockets and micromanaged about how much time we spend on cases. Beginning in October of last year, judges were ordered to complete 700 cases each year or risk a less-than-satisfactory performance evaluation, which can cost a judge his or her job. This is not how a court should be run. Attorney General William P. Barr told Congress this week that he is hoping to boost the number of judges in our courtrooms from around 425 to 535 over the next few years and for a commensurate boost in lawyers and clerks. We desperately need the help.

April 13

Federal Judge Blasts Trump

carlton reeves university of virginia sanjay suchak

U.S. District Judge Carlton Reeves argued for federal courts’ need to defend marginalized groups at a University of Virginia School of Law event on April 11. (University of Virginia School of Law)

Washington Post, You can hear the Klan’s lawyers’: Federal judge likens Trump’s attacks on judiciary to KKK, Reis Thebault, April 13, 2019. Federal judge compares Trump’s attacks on judiciary to KKK, segregationist attacks on black judges. President Trump has attacked the judiciary like few U.S. leaders before him, disparaging judges and their rulings as “dangerous,” “horrible” and “a complete and total disgrace.” Some of his supporters and fellow Republicans applaud and parrot him, but U.S. District Judge Carlton Reeves said he hears something sinister: echoes of a time when the Ku Klux Klan and the architects of the Jim Crow South attacked the courts for chipping away at segregation and racism.

In a speech to the University of Virginia School of Law on Thursday, Reeves criticized Trump’s aggressive responses to his administration’s losses in court and the lack of diversity in his judicial appointments — an extremely rare rebuke from a sitting federal judge. Though Reeves, whose court is in Jackson, Miss., never mentioned Trump by name, he quoted the president more than a dozen times and compared him to a stridently racist Alabama governor.

“When the executive branch calls our courts and their work ‘stupid,’ ‘horrible,’ ‘ridiculous,’ ‘incompetent,’ ‘a laughingstock,’” Reeves said, drawing from Trump’s Twitter feed, “you can hear the slurs and threats of executives like George Wallace, echoing into the present.”

Take Trump’s insults of Judge Gonzalo Curiel, Reeves said. Trump said Curiel should not hear a lawsuit against Trump University because Trump’s hard-line immigration polices presented a conflict of interest for Curiel, who is of Mexican descent.

“I know what I heard when a federal judge was called ‘very biased and unfair’ because he is ‘of Mexican heritage.’ When that judge’s ethnicity was said to prevent his issuing ‘fair rulings,' when that judge was called a 'hater’ simply because he is Latino,” Reeves said, “I heard those words and I did not know if it was 1967 or 2017.”

The White House declined to comment on the speech, which was first reported by BuzzFeed News. Reeves, through his law clerk, said he wouldn’t make any further comments.

Half a century later, Reeves said, Americans are “eyewitnesses to the third great assault on our judiciary.”

“When politicians attack courts as ‘dangerous,’ ‘political,’ and guilty of ‘egregious overreach,’ you can hear the Klan’s lawyers, assailing officers of the court across the South,” he said.

carlton reevesIt’s not that courts should be exempt from criticism, Reeves (shown in a file photo) said. He maintained that debating judicial decisions ultimately improves the courts.

“But the slander and falsehoods thrown at courts today are not those of a critic seeking to improve the judiciary’s search for truth,” he said. “They are words of an attacker, seeking to distort and twist that search toward falsehood.”

Trump’s broadsides may be loud, but it’s his appointments that may end up having the most lasting effect, Reeves said. As of April 1, more than three-quarters of confirmed appellate and district court nominees were white, according to Alliance for Justice, a left-leaning advocacy group. More than 90 percent were male.

“That’s not what America looks like,” Reeves said. “That’s not even what the legal profession looks like. . . . There is no excuse for this exclusion of minority experiences from our courts.”

Judges, especially at the federal level, typically try to eschew partisan tangles, particularly with presidents.

When Trump was a candidate, Supreme Court Justice Ruth Bader Ginsburg told the New York Times that she “can’t imagine what this place would be . . . with Donald Trump as our president.”

“For the country, it could be four years,” she said. “For the court, it could be — I don’t even want to contemplate that.”

Days later, Ginsburg apologized, calling her comments “ill-advised.”

Reeves, however, has drawn national attention before. In 2018, he issued a strongly worded decision striking down Mississippi’s law banning abortions after 15 weeks of pregnancy, chastising the state for choosing to “pass a law it knew was unconstitutional.”

In 2015, Reeves gave another stirring speech, that time a 2,500-word address from the bench, aimed at three white men who were sentenced in the killing of a black man — a hate crime, he said, that in the past would have been written off as “acceptable racially inspired pranks.” Instead he handed down sentences between seven and 50 years.

Reeves gave his speech Thursday as he accepted the university’s Thomas Jefferson Foundation Medal in Law, one of its highest awards. He began by addressing the third U.S. president’s complicated history — a mix of “genius,” “curiosity” and “industry,” along with well-documented racism.

“I must stand up and speak about that pairing,” he said. “How corrosive it has been since the days of Jefferson, who we all agree, was a man of his time. How often that pairing has been embraced throughout our history, by men of their times. And why we must defend against its poison when spewed today, by men of our time.”

Trump Watch

April 9

washington post logoWashington Post, ‘Kick Kavanaugh off campus’: Students decry George Mason’s decision to hire Supreme Court justice, Isaac Stanley-Becker, April 9, 2019. Supreme Court Justice Brett M. Kavanaugh will beat the Washington heat this summer and head for Runnymede, England, a bucolic borough 20 miles from London along the River Thames. At the site where the Magna Carta was sealed 804 years ago, laying the groundwork for constitutional democracy, the judge will teach a course on the origins of the U.S. Constitution to students at George Mason University’s Antonin Scalia Law School — 3,600 miles from the Arlington, Va., campus.

brett kavanaughHe will be joined in the English countryside by Jennifer Mascott, an assistant professor of law at George Mason. One of Kavanaugh’s former clerks on the U.S. Court of Appeals for the D.C. Circuit, Mascott came to his defense when his nomination was threatened last year by allegations of sexual misconduct, which he vehemently denied. “He has acted with the utmost character and integrity,” she told “PBS NewsHour.”

Some students at the university’s main campus in Fairfax City see matters differently. After news of his hire surfaced at the end of March in the undergraduate newspaper, the Fourth Estate, survivors of sexual assault mobilized to demand that he be terminated.

The judge (right), who was first nominated to the federal bench by President George W. Bush and to the nation’s top court by President Trump, used to teach at Harvard Law School. But administrators in Cambridge, Mass., informed students last fall that he had decided not to return this year to teach his course, “The Supreme Court Since 2005.” The announcement followed calls on Harvard, by hundreds of its students and alumni, to revoke his status as a lecturer.

The contest over Kavanaugh’s nomination became a flash point in the #MeToo movement, as well as an illustration of the polarization and distrust poisoning American politics. Now, the dispute at George Mason has become the latest front in the campus culture wars, reflecting broader upheaval over sexual violence, political correctness, free speech and sensitivity.



March 31

Covert Politics At U.S. Supreme Court

geoffrey stonewashington post logoWashington Post, Book Review: Chief Justice Roberts’s delicate seat at the center of a divided Supreme Court, Geoffrey R. Stone (right, distinguished professor of law and former provost at the University of Chicago), March 31, 2019 (print ed.). The Supreme Court sits at the center of fundamental disagreements about various crucial issues — campaign finance, affirmative action, abortion, gun control, voting rights and the constitutionality of some of President Trump’s most controversial actions — and the stakes are as high as they have ever been. At the center of it all is conservative Chief Justice John G. Roberts Jr.

As Joan Biskupic observes in her book The Chief: The Life and Turbulent Times of Chief Justice John Roberts, after Republicans’ refusal to confirm President Barack Obama’s Supreme Court choice, Merrick Garland, and Trump’s appointment of two fiercely conservative justices, Neil M. Gorsuch and Brett M. Kavanaugh, the Supreme Court is “now Roberts’s in name and reality.”

joan biskupic john roberts the chiefAlthough Roberts consistently maintains that the court is not a political body, and although he insists publicly that “the justices do not advance political positions,” Biskupic concludes that, in his decision-making in the most important and ideological cases, Roberts has all too often “engaged in the partisanship he claimed to abhor.” Moreover, although Roberts’s public persona seems very easygoing and congenial, Biskupic reveals that his top-down style has often “rankled” his colleagues on the court.

Like Biskupic’s previous books about Justices Sandra Day O’Connor, Antonin Scalia and Sonia Sotomayor, The Chief offers an extraordinarily insightful, thoughtful and accessible analysis of Roberts’s personal life, professional career, judicial experience and approach to constitutional interpretation. It is essential reading for anyone who truly wants to understand this pivotal moment in Supreme Court history.

Biskupic, who has known Roberts for more than 20 years, sat down with him for seven interviews totaling 20 hours for her book. She was therefore well-positioned to offer often stunning insight into Roberts’s life and thinking both on and off the court.

joan biskupic pbsRoberts leads the Supreme Court at a critical moment. For the first time in history, the court is divided 5 to 4 not only along ideological lines, but along partisan lines as well. That is, all five justices in the highly conservative majority were appointed by Republican presidents, and all four justices in the more liberal minority were appointed by Democratic presidents. Thus, there is a serious danger that on all the issues that have bitterly divided the justices over the past half a century, the court will divide sharply along partisan lines.

Such a state of affairs will seriously undermine the fundamental integrity of the court itself. The whole point of relying on judges and justices to decide fundamental questions of law is that they are doing their best to apply the law in a neutral and fair-minded manner. Although they may disagree sharply about questions of constitutional interpretation, their disagreements should be on intellectual rather than partisan lines.

djt brett kavanaugh amy coney barrett

Axios Sneak Peek, Scoop — Trump "saving" Judge Barrett for Ginsburg seat, Jonathan Swan, March 31, 2019. As he was deliberating last year over replacing Supreme Court Justice Anthony Kennedy, President Trump told confidants he had big plans for Judge Amy Coney Barrett (shown above in a graphic from last summer).

"I'm saving her for Ginsburg," Trump said of Barrett, according to three sources familiar with the president's private comments. Trump used that exact line with a number of people, including in a private conversation with an adviser two days before announcing Brett Kavanaugh's nomination.

Barrett is a favorite among conservative activists, many of whom wanted her to take Kennedy’s spot.

• She's young and proudly embraces her Catholic faith.
• Her past academic writings suggest an openness to overturning Roe v. Wade.
• Her nomination would throw gas on the culture-war fires, which Trump relishes.

But Trump chose to wait. Yes, but: There's no guarantee Trump will get another Supreme Court pick. It's very unlikely Ginsburg will retire while he’s in office. And though she's 86 and has had 3 bouts with cancer, she's on the bench now and appears healthy.

Why it matters: Trump has already pulled the court well to the right. If he gets to replace Ginsburg, especially with Barrett, he would cement a young, reliably conservative majority that could last for decades.

March 30

washington post logobrett kavanaugh.judgeLWashington Post, Brett Kavanaugh pivots as Supreme Court allows one execution, stops another, Robert Barnes, March 30, 2019. The court took different stances in cases involving Muslim and Buddhist death-row inmates. It’s difficult to say with certainty why the Supreme Court on Thursday night stopped the execution of a Buddhist inmate in Texas because he was not allowed a spiritual adviser by his side, when last month it approved the execution of a Muslim inmate in Alabama under the almost exact circumstances.

But the obvious place to start is new Justice Brett M. Kavanaugh, right, who seemed to have a change of heart. Ilya Somin, a law professor at the Antonin Scalia Law School at George Mason University and a sharp critic of the court’s decision in Dunn v. Ray, said the most logical explanation is the court was stung by the barrage of criticism it received from the left and the right.

The justices “belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the court’s reputations,” Somin wrote on the Volokh Conspiracy blog.

March 18

NY Times Probes Trump-Troubled Bank

ny times logoNew York Times, A Mar-a-Lago Weekend and an Act of God: Trump’s History With Deutsche Bank, David Enrich, March 19, 2019 (print ed.). As a developer, Donald Trump borrowed more than $2 billion from Deutsche Bank. Once he was president, employees were told not to utter his name. Now Mr. Trump’s financial ties with the bank are the subject of investigations by two congressional committees and the New York attorney general.

Mr. Trump and Deutsche Bank were deeply entwined, their symbiotic bond born of necessity and ambition on both sides: a real estate mogul made toxic by polarizing rhetoric and a pattern of defaults, and a bank with intractable financial problems and a history of misconduct.

deutsche bank logoMr. Trump used loans from Deutsche Bank to finance skyscrapers and other high-end properties, and repeatedly cited his relationship with the bank to deflect political attacks on his business acumen. Deutsche Bank used Mr. Trump’s projects to build its investment-banking business, reaped fees from the assets he put in its custody and leveraged his celebrity to lure clients.

Over nearly two decades, Deutsche Bank’s leaders repeatedly saw red flags surrounding Mr. Trump. There was a disastrous bond sale, a promised loan that relied on a banker’s forged signature, wild exaggerations of Mr. Trump’s wealth, even a claim of an act of God.

But Deutsche Bank had a ravenous appetite for risk and limited concern about its clients’ reputations. Time after time, with the support of two different chief executives, the bank handed money — a total of well over $2 billion — to a man whom nearly all other banks had deemed untouchable.

Palmer Report, Analysis: Anthony Kennedy and his son were even more deeply involved in Donald Trump’s Russia scandal than we Anthony Kennedy official SCOTUS portraitthought, Bill Palmer, March 18, 2019. Last year, even as Donald Trump’s presidency seemed to be on its last legs, and the Republican Party seemed to be inching away from him, something happened that caused the GOP to rush back into his arms and buy him significant time.

Supreme Court Justice Anthony Kennedy, right, abruptly announced he was retiring, thus allowing Trump to nominate his replacement. This was suspicious beyond words, because Kennedy’s son was an executive at Deutsche Bank, which was at the financial center of Donald Trump’s Russia scandal.

bill palmer report logo headerThis set off a million theories about how Donald Trump might have used Trump-Russia dirt on Justin Kennedy as leverage to force Anthony Kennedy into retirement. The trouble was that, while it all made sense, it was all vague and circumstantial. But that’s no longer the case. Tonight the New York Times published a verty lengthy expose about the mutually corrupt relationship between Trump and Deutsche Bank over the years – and both the older and younger Kennedy play a role in the story.

deutsche bank logoThe NY Times article confirms, once and for all, what had long been suspected: Justin Kennedy was indeed the Deutsche Bank senior executive who kept making the decision to loan large amounts of money to Donald Trump for bad real estate deals, even after every other bank in the world had sworn off lending money to Trump. Oh, and there’s this sentence: “Occasionally, Justice Kennedy stopped by Deutsche Bank’s offices to say hello to the team.”

U.S. Courts

joan biskupic john roberts the chiefTHE CHIEF: The Life and Turbulent Times of Chief Justice John Roberts
By Joan Biskupic
421 pp. Basic Books. $32.

ny times logoNew York Times, Book Review: The ‘Enigma’ Who Is the Chief Justice, Adam Cohen, March 18, 2019. Joan Biskupic’s “The Chief” examines John Roberts’s life and his career on the Supreme Court.

When the Supreme Court upheld the Affordable Care Act in 2012, Chief Justice John Roberts provided the critical fifth vote, enraging conservatives and delighting liberals. Ever since, questions have swirled around his vote. How could a jurist who was so carefully vetted for ideological purity have turned apostate on such a defining issue, saving Obamacare from oblivion?

In The Chief, her assiduously reported and briskly written biography, Joan Biskupic, a CNN analyst who has long covered the court, offers new behind-the-scenes details. Roberts was, she says, initially inclined to strike down a key part of the law, the individual mandate, which required people to have insurance or pay a penalty. But during the opinion-drafting process he joined the liberals in affirming it.

joan biskupic pbsWhile Biskupic (shown in a file photo) sheds light on when and how Roberts made that decision, she is less illuminating on why. She ticks off leading theories: He was wary of overturning the elected branches of government on such an important issue, or reluctant to throw the national health care system into chaos, or worried about the court’s reputation. It is not clear, however, which of these, if any, explains why he came out as he did.

The difficulty of understanding that historic vote is emblematic of something larger: just how hard it is to figure out who Roberts really is. With his square-jawed, no-hair-out-of-place looks and icy smile, he often resembles an animatronic version of a chief justice, with the dial set firmly to the right.

Who Roberts is and what he stands for are more important than ever since Anthony Kennedy retired last year and Brett Kavanaugh, who is more conservative, took his seat. Roberts is now both chief justice and the court’s swing justice — which means that, increasingly, the law is likely to be what he says it is.

Adam Cohen, a former member of The Times’s editorial board, is the author of “Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck.”

Palmer Report, Opinion: Senate Republicans are trying to hurry up and finish their dirty work before Donald Trump is ousted, Isabel Stamm, March 18, 2019. On March 12, the Senate confirmed Paul Matey as an appointee to the Third U.S. Circuit Court of Appeals in a vote that came down strictly along party lines. As a consequence, this court now has a 7—6 majority of Republican appointees, with one more pending vacancy.

bill palmer report logo headerThe next day, Senate Judiciary Committee Chairman Lindsey Graham conducted hearings for two Trump nominees to the Ninth Circuit against objections from the candidates‘ home state senators, Kamala Harris and Dianne Feinstein.

kamala harris portraitOn this occasion, Senator Harris, right, tweeted out: "Here’s what’s happening right now in the Senate Judiciary Committee: Neither @SenFeinstein nor I have returned blue slips for the two Ninth Circuit nominees from CA before us today. Republicans are disregarding this 100 year old tradition to push extreme & ideological nominees."

In the Senate, blue slips are a convention which allows the senators from the state of residence of a federal judicial nominee to give an opinion on the candidate which is then taken into account in the confirmation process.

There is no enforceable rule that obliges the Judiciary Committee to reject a nominee if one or both home state senators return a negative blue slip or fail to return blue slips altogether, but it is nevertheless a tradition that in the past both parties have had mitch mcconnell2the decency to uphold.

However, the current Senate under the leadership of Mitch McConnell, left, has chosen to ride roughshod over this tradition, as Senator Dianne Feinstein pointed out in a tweet referencing the confirmation of Paul Matey: "No Democratic majority has EVER held a hearing or confirmed a judicial nominee over the objection of a home-state Republican senator – NEVER. Matey will be the SEVENTH circuit court judge confirmed under President Trump over the objection of home-state Democratic senators."

As of March 13, the number has risen from seven to eight, since on that day the Senate Judiciary Committee also confirmed Neomi Rao as replacement for Brett Kavanaugh on the powerful D.C. Circuit Court, the second most important court in the country. Rao shares a number of characteristics with other Trump appointees in that she is controversial, young and has no experience when it comes to practicing law in a courtroom.

All these new judges who are strong on partisan ideology rather than having a proven record of impartially serving the American people now have lifetime appointments and the ability to influence the judicial system for decades to come. This will be the legacy of a presidency that never should have happened. But Republicans are obviously grimly determined to squeeze the last bit of juice out of Donald Trump’s incumbency before supporting him becomes too politically costly

March 12

ny times logoNew York Times, Reparations, Court-Packing: 2020 Democrats Debate Once-Fringe Issues, Sydney Ember and Astead W. Herndon, March 12, 2019. As the Democratic field moves to the left, grass-roots organizers see openings to push more niche issues like reparations, court-packing and eliminating the filibuster.

It was a made-for-social-media moment for Pete Buttigieg. In Philadelphia last month on his book tour, Mr. Buttigieg, the mayor of South Bend, Ind., and a Democratic candidate for president, fielded an unlikely question from the audience: “Would you support a packing of the courts to expand the Supreme Court by four members?”

The inquiry elicited titters from the politics-hungry crowd that appeared surprised by the question. But not from Mr. Buttigieg.

supreme court graphic“I don’t think we should be laughing at it,” he said. “In some ways it’s no more a shattering of norms than what’s already been done to get the judiciary to where it is today.”

His response drew immediate praise from liberal news outlets; ThinkProgress declared him the only Democratic candidate that seemed “serious about governing.” But if Mr. Buttigieg’s remarks were off-the-cuff, the question was not: It had been posed by a person involved with Pack the Courts, a liberal activist group that favors adding judges in order to flip the ideological tilt of the high court — known as court-packing.


Feb. 20

ny times logoadam liptakNew York Times, Supreme Court Puts Limits on Police Power to Seize Private Property, Adam Liptak (right), Feb. 20, 2019. Civil forfeiture is a popular way to raise revenue, and its use has been the subject of widespread criticism across the political spectrum. Justice Ruth Bader Ginsburg wrote that excessive fines have played a dark role in this nation’s history.

Siding with a small time drug offender in Indiana whose $42,000 Land Rover was seized by law enforcement officials, the Supreme Court on Wednesday ruled ruth bader ginsburg portraitthat the Constitution places limits on civil forfeiture laws that allow states and localities to take and keep private property used to commit crimes.

Civil forfeiture is a popular way to raise revenue, and its use has been the subject of widespread criticism across the political spectrum.

The Supreme Court has ruled that the Eighth Amendment, which bars “excessive fines,” limits the ability of the federal government to seize property. On Wednesday, the court ruled that the clause also applies to the states.

Justice Ruth Bader Ginsburg (left), writing for eight justices, said the question was an easy one. “The historical and logical case for concluding that the 14th Amendment incorporates the Excessive Fines Clause is overwhelming,” she wrote.

Feb. 19

ny times logoNew York Times, Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling, Adam Liptak, Feb. 19, 2019. Justice Clarence Thomas on Tuesday called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment to make it hard for public officials to prevail in libel suits. He clarence thomas w new officialsaid the decision had no basis in the Constitution as it was understood by the people who drafted and ratified it.

New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote.

Justice Thomas, writing only for himself, made his statement in a concurring opinion agreeing that the court had correctly turned down an appeal from Kathrine McKee, who has accused Bill Cosby of sexual assault. She sued Mr. Cosby for libel after his lawyer said she had been dishonest.

An appeals court ruled against Ms. McKee, saying that her activities had made her a public figure and that she could not prove, as required by the Sullivan decision, that the lawyer had knowingly or recklessly said something false. Ms. McKee asked the Supreme Court to review the appeals court’s determination that she was a public figure.

Feb. 14

linda greenhouse cover just a journalistny times logoNew York Times, Opinion: When Judges Defy the Supreme Court, Linda Greenhouse (shown on the cover of her memoir Just A Journalist), Feb. 14, 2019. The chief justice faces a time of great testing, both of himself and of the institution he heads, as the lower courts move rapidly even to his right. No, I wasn’t surprised last week, as most people apparently were, when Chief Justice John Roberts cast the deciding fifth vote to preserve access to abortion in Louisiana for at least a little while longer. In fact, I had predicted it (and I have witnesses).

The voluminous commentary on what happened at the court last week has for the most part not fully conveyed the blatant nature of the lower court’s decision, on which the Supreme Court put a temporary hold to afford the plaintiffs — an abortion clinic and its doctors — the chance to file a formal appeal.

The court is the United States Court of Appeals for the Fifth Circuit, based in New Orleans and covering Texas and Mississippi along with Louisiana. Not surprisingly given its territory, it has been the location of numerous legal battles over abortion. The Trump administration has been spectacularly successful in filling seats on the Fifth Circuit. Five of the 16 active judges are Trump appointees. That places the Fifth Circuit at the leading edge of the coming wave of Trump judges (sorry, Chief Justice Roberts, I’m afraid that’s what they are), so it’s important to understand what is going on there.

bill yeomans afj cropped CustomAlliance For Justice, Opinion: Brown, Upside-Down, Bill Yeomans (right), Feb. 14, 2019. Neomi Rao is the latest Trump judicial nominee to refuse to say whether she thinks Brown v. Board. of Education was correctly decided. She joins a growing list of Trump picks who refuse to endorse this iconic Supreme Court decision.

The stated reason is that they don’t want to start down a slippery slope of endorsing and rejecting decisions. That explanation is nonsense, since there are many sticky footholds along the descent from Brown to cases now pending in the courts. The more credible reason is that they don’t want to have to embrace or reject Roe v. Wade. Nor do they want to have to explain why they would endorse Brown, but refuse to opine on Roe, thereby consigning Roe to a less secure class of decisions.

alliance for justice logoBut, other recent, high profile Republican nominees, including Brett Kavanaugh, Neil Gorsuch, John Roberts, and Samuel Alito have been willing to praise Brown as an example of the Supreme Court at its best. They all faced the same concerns about Roe, yet plowed ahead on Brown. If they could do it, why not circuit court nominees Rao, Chad Readler, or Andrew Oldham, or a series of district court nominees? Is there something more that is pushing them away from Brown or that makes its embrace no longer politically necessary?

The truth is that conservatives never fully embraced Brown. The Court’s decision striking down laws requiring racial segregation of schools was met with massive resistance by people living in affected states, conservative politicians, and conservative intellectuals. President Eisenhower was no fan. Barry Goldwater opposed the decision. William F. Buckley rejected the Court’s reasoning.

Appeals to resisters of Brown lay at the core of Nixon’s southern strategy. The drive to appoint ideologically conservative judges was born, in significant part, out of reaction to Brown and Roe v. Wade.

Supreme court 2018 Mandel Ngan/AFP)

With another Supreme Court vacancy, or two, President Trump’s record and influence on the future of the country will look even more secure. (photo: Mandel Ngan/AFP)

jeffrey toobinNew Yorker, Is Clarence Thomas Ready to Go? Jeffery Toobin (right), Feb. 14, 2019. No one tells a Supreme Court Justice when to retire. But there are currently two new yorker logoretirement dramas under way at the Court — one semi-public and the other semi-private — and they both have the potential to reshape the meaning of the Constitution for decades.

The public story is that of Ruth Bader Ginsburg, the Court’s senior liberal. Late last year, she fell and broke three ribs and, when she was being treated, doctors discovered that she had lung cancer, her third bout with cancer. She underwent surgery, apparently successfully, and the Court released word that she would need no further treatment. But, in January, she missed oral arguments for the first time in twenty-five years on the Court, and there is no guarantee that she will be there when the Justices next hear cases, on February 19th. Still, the retirement drama regarding Ginsburg is straightforward. She will hang on for as long as she can, in the hopes that a Democratic President will appoint her successor after the 2020 election.

clarence thomas HRThe more complex drama involves Clarence Thomas, who is seventy years old and the longest-tenured Associate Justice on the Court. With fifty-three Republicans now in the Senate (and no filibusters allowed on Supreme Court nominations), President Trump would have a free hand in choosing a dream candidate for his conservative base if Thomas were to retire this year. The summer of 2019 would seem an ideal time to add a third younger conservative to the Court (along with Neil Gorsuch, who is fifty-one, and Brett Kavanaugh, who is fifty-four). It’s true that Mitch McConnell, the Senate Majority Leader, would likely violate his Merrick Garland rule and try to push through a nominee in 2020, an election year, but 2019 would be much easier to navigate. So, many conservatives are asking, why shouldn’t Thomas leave now?

It seems that the President may have had the same thought. Trump has shown unusual solicitude for Justice Thomas and his wife, Ginni, a hard-right political activist. The President and the First Lady had the Thomases to dinner, and then Trump welcomed Ginni and some of her movement colleagues to the White House for an hour-long discussion.

djt brett kavanaugh amy coney barrettBut will Thomas retire? Over the years, he has made little secret of the fact that he doesn’t enjoy the job very much. With a conservative future of the Court secure, why wouldn’t he call it a day after twenty-eight years? Because, according to his friends, he feels an obligation to continue doing the job for as long as he is able, regardless of the political implications of his departure. Of course, no one except Thomas knows for sure what he will do, and that leaves his decision open to speculation.

There seems little doubt, however, about what would happen if either he or Ginsburg leaves in the next year or two. The President would likely nominate as a replacement Amy Coney Barrett, a forty-seven-year-old judge on the Seventh Circuit. A former professor at Notre Dame Law School, Barrett was nominated to the appeals court by Trump, in 2017, and she has already been considered for a Supreme Court seat — the one that went to Kavanaugh. (Barrett and Kavanaugh are shown together in a graphic last summer before Kavanaugh's nomination.).

Feb. 8

U.S. Supreme Court: Abortion, Trends

ny times logoNew York Times, Supreme Court Blocks Louisiana Abortion Law, Adam Liptak, Feb. 8, 2019 (print edition). The Supreme Court on Thursday blocked a Louisiana law that its opponents say could have left the state with only one doctor in a single clinic authorized to provide abortions.

john roberts oThe vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s four-member liberal wing to form a majority. That coalition underscored the pivotal position the chief justice has assumed after the departure last year of Justice Anthony M. Kennedy, who used to hold the crucial vote in many closely divided cases, including ones concerning abortion.

The court’s brief order gave no reasons, and its action — a temporary stay — did not end the case. The court is likely to hear a challenge to the law on the merits in its next term, which starts in October. Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh said they would have denied the stay. Only Justice Kavanaugh published a dissent, taking a middle position that acknowledged the key precedent and said he would have preferred more information on the precise effect of the law.

ny times logoNew York Times, With Abortion in Spotlight, a Flurry of Legislation Across the Country, Julia Jacobs and Matt Stevens, Feb. 8, 2019. The Supreme Court on Thursday blocked a Louisiana law that its opponents say would leave the state with a single doctor authorized to perform abortion, the latest development in the national legal fight over the fate of abortion law under a conservative-leaning court.

brett kavanaughLouisiana’s law, which requires that doctors performing abortions have admitting privileges at nearby hospitals, was enacted in 2014. But in recent days and weeks, there has been a flurry of new state legislation that could prove important if the nation’s highest court rules on more abortion-related cases.

Since the nomination of Brett M. Kavanaugh (left) to the Supreme Court in July, abortion rights groups have warned of a threat to Roe v. Wade, the landmark 1973 ruling that made abortion legal nationwide, prompting some states to try to shore up access to the procedure. Anti-abortion groups have been pushing for more restrictions.

Here is the status of some recent state abortion legislation.

washington post logoWashington Post, Opinion: The biggest losers in the Supreme Court’s abortion ruling, Jennifer Rubin (right), jennifer rubin new headshotFeb. 8, 2019. States are passing new abortion laws in a test of the Supreme Court's new majority. The Supreme Court on Thursday in a 5-4 decision blocked a Louisiana law that would have, in effect, barred most abortions. Chief Justice John G. Roberts Jr. sided with the four Democratic-appointed justices; the other Republican-appointed justices, including Neil Gorsuch and Brett M. Kavanaugh, voted to uphold the law.

The decision was a triumph for abortion rights advocates in several respects. Ilyse Hogue, head of NARAL Pro-Choice America, tweeted:

susan collins oHogue told me, “Susan Collins (left) gaslighted millions of Americans claiming we were hysterical in believing that Justice Kavanaugh would vote to overturn precedent ... His decision in the Louisiana case proves us correct.” She added, “Senator Collins, you broke it, you bought it.” (In fact, the Republican senator from Maine voted for both Gorsuch and Kavanaugh, creating a huge political problem for her should she run for reelection in 2020.)

The ruling is especially significant since abortion rights opponents swore up and down that eradicating Roe v. Wade wasn’t on the table. It certainly was, and their credibility has taken a hit.

Most important is what the decision tells us about the Supreme Court’s shifting alliances. Increasingly concerned about the Supreme Court’s credibility and the appearance of partisanship, Roberts joined up for the first time to protect abortion rights, something previously unimaginable. Should Roberts follow course on other issues, in essence stepping into the Justice Anthony Kennedy role as a persuadable justice, President Trump’s effort to refashion the court for a generation will be diminished.

Feb. 7

washington post logoWashington Post, Barr’s attorney general nomination clears Senate panel. If confirmed, he would oversee Mueller probe, Matt Zapotosky​, Feb. 7, 2019. The procedural step sets the stage for William P. Barr’s confirmation vote next week before the entire Senate.

The Senate Judiciary Committee voted Thursday along party lines to advance William P. Barr’s nomination to become attorney general, a procedural step that sets the stage for his confirmation vote next week before the entire Senate.

Because Republicans control the Senate, Barr is likely to be confirmed easily — though potentially without any Democratic support. At the Judiciary Committee’s hearing richard blumenthal portraitThursday, all 10 panel Democrats voted against moving the nomination forward, while all 12 Republicans voted to advance it.

Democrats said they were particularly concerned that Barr would not specifically commit to letting the public see whatever report results from the special-counsel investigation into President Trump’s campaign.

“They paid for it,” said Sen. Richard Blumenthal (D-Conn., right), who has co-sponsored a bill requiring the findings be released. “They deserve to see everything that’s in it.”

washington post logoWashington Post, Whitaker says he won’t testify before House panel unless Democrats drop subpoena threat, Karoun Demirjian and Devlin Barrett, Feb. 7, 2019. The House Judiciary Committee voted to give its chairman the authority to subpoena the acting attorney general, should he fail to appear or answer lawmakers’ questions.

Acting Attorney General Matthew G. Whitaker said he will not appear before Congress on Friday without assurances that he won’t be subpoenaed — giving Democrats a deadline of 6 p.m. Thursday to respond.

Whitaker’s move came shortly after the House Judiciary Committee voted along party lines to give its chairman the authority to subpoena Whitaker’s testimony, should he not appear or answer lawmakers’ questions.

[Read the Justice Department’s letter to the House Judiciary Committee]

The confrontation highlights efforts by Democrats to assert their newfound control of the House of Representatives as a check on the Trump administration’s power, and the administration’s determination to push back against congressional investigations decried by the president. However the Whitaker subpoena standoff ends, it may set the tone for months or years more of wrangling between the White House and congressional Democrats.

Alliance for Justice, Opinion on Justice in the Trump Era, H.R. 1 and Brett Kavanaugh, Bill Yeomans, Feb. 7, 2019. Democrats are kicking off the new Congress with hearings on H.R. bill yeomans afj cropped Customalliance for justice logo1, the For the People Act of 2019. The bill contains a blueprint for strengthening democracy through reforms in voting, campaign finance, and ethics in all three branches of government. It is massive, ambitious and long overdue. The bulk of the bill addresses access to the ballot and how to make those votes meaningful.

Buried deep in the lengthy proposal, however, there appears a longstanding proposal, discussed in excellent testimony, to subject Supreme Court justices to a code of conduct for the first time. That provision provides the occasion for a crucial examination of the health of the Supreme Court, including the challenges raised by its newest member.

brett kavanaugh.judgeLBrett Kavanaugh (left) was confirmed by a Senate in which partisan fealty and a commitment to radically conservative ideology steamrolled concern about the integrity of the Court. The severely truncated process installed a nominee who was credibly accused of sexual assault. He lied to the Senate Judiciary Committee about a range of other matters, from his denial that he knowingly received memos stolen from Democratic Judiciary Committee staffers to the meaning of entries in his high school yearbook.

His hearing proceeded without production of 90% of his official paper trail and the FBI was not permitted to conduct a full probe of the sexual assault allegations against him. His second appearance before the committee featured angry, partisan, injudicious attacks – by the nominee. The process left a bitter aftertaste for anyone concerned about the future of the Court.

H.R. 1 offers the opportunity to put that aftertaste to work. Kavanaugh serves as the poster child for reforms to the Court’s ethics. Kavanaugh’s confirmation cemented the image of the Court as a profoundly political institution. It continued the decades-long alliance between conservative politicians and the conservative legal movement to stock courts – and particularly the Supreme Court – with judges and justices who would apply conservative legal ideology to implement a conservative political agenda.


Jan. 22

 Supreme Court / Transgender

washington post logoWashington Post, Supreme Court allows Trump restrictions on transgender troops to go into effect as legal battle continues, Robert Barnes and Dan Lamothe​, Jan. 22, 2019. In a 5-to-4 decision, the justices lifted nationwide injunctions that had kept the administration’s policy from being implemented.

Jan. 5

washington post logoWashington Post, How the Federalist Society became much more than the conquerors of the courts, David Montgomery, Jan. 5, 2019. The conservative and libertarian society for law and public policy studies has reached an unprecedented peak of power and influence. Brett brett kavanaughKavanaugh (right), whose membership in the society dates to his Yale Law School days, has just been elevated to the Supreme Court; he is the second of President Trump’s appointees, following Neil Gorsuch, another justice closely associated with the society.

They join Justice Clarence Thomas (who said last spring he’s “been a part of the Federalist Society now since meeting with them … in the 1980s”), Chief Justice John Roberts (listed as a member in 1997-98) and Justice Samuel Alito (a periodic speaker at society events).

The newly solidified conservative majority on the court will inevitably decide more cases in line with the society’s ideals — which include checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning. In practice, this could mean fewer regulations of the environment and health care, more businesses allowed to refuse service to customers on religious grounds, and denial of protections claimed by newly vocal classes of minorities, such as transgender people.

Jan. 4

washington post logoWashington Post, Supreme Court to hear cases on partisan gerrymandering, Robert Barnes, Jan. 4, 2018. The justices will review rulings from lower courts that found congressional maps in North Carolina and Maryland so infected with politics that they violated voters' rights.

The Supreme Court once again will take up unresolved constitutional questions about partisan gerrymandering, agreeing Friday to consider rulings from two lower courts that found congressional maps in North Carolina and Maryland so extreme that they violated the rights of voters.

The North Carolina map was drawn by Republicans, the Maryland districts by the state’s dominant Democrats.

While the Supreme Court regularly scrutinizes electoral districts for racial gerrymandering, the justices have never found a state’s redistricting map so infected with politics that it violates the Constitution. Such a decision would mark a dramatic change for how the nation’s political maps are drawn.

Jan. 2

supreme court building

SCOTUSblog, Wednesday round-up, Edith Roberts, Jan. 2, 2018. On Monday evening, Chief Justice John Roberts released his year-end report on the federal judiciary. Amy Howe writes for this blog that the report “focus[ed] on the judiciary’s response to allegations of sexual misconduct in the workplace.”

At, Tony Mauro notes that “[i]t was the second annual report in which Roberts discussed the need for the judiciary to take steps to end sexual harassment in the workplace and to make it easier for court employees to report improper conduct without running afoul of strict confidentiality rules.” For The Wall Street Journal, Jess Bravin reports that “[t]he Supreme Court itself isn’t bound by the federal laws and codes of conduct that apply to lower courts,” and “[t]he report gave no indication that the justices were prepared to accept the obligations expected of lower courts.” Bill Mears reports for Fox News that “[w]hat was noteworthy in the 15-page report was a topic Roberts chose not to discuss: the ongoing criticism by President Trump of judges and courts that have ruled against him, especially on his immigration policies.”

Lydia Wheeler reports for The Hill that although the “Supreme Court’s 2018-2019 term got off to a sleepy start, … there are a number of potential blockbusters on the docket for the new year”; she takes “a look at the top five cases to watch.” In an op-ed for Fox News, John Yoo and James Phillips explain why “[t]he year ahead has the potential to be historic for the U.S. Supreme Court.”



Jan. 4

washington post logoWashington Post, Supreme Court to hear cases on partisan gerrymandering, Robert Barnes, Jan. 4, 2018. The justices will review rulings from lower courts that found congressional maps in North Carolina and Maryland so infected with politics that they violated voters' rights.

The Supreme Court once again will take up unresolved constitutional questions about partisan gerrymandering, agreeing Friday to consider rulings from two lower courts that found congressional maps in North Carolina and Maryland so extreme that they violated the rights of voters.

The North Carolina map was drawn by Republicans, the Maryland districts by the state’s dominant Democrats.

While the Supreme Court regularly scrutinizes electoral districts for racial gerrymandering, the justices have never found a state’s redistricting map so infected with politics that it violates the Constitution. Such a decision would mark a dramatic change for how the nation’s political maps are drawn.



Dec. 31

SCOTUSblog, The chief justice’s 2018 year-end report: The federal judiciary and #MeToo, Amy Howe, Dec. 31, 2018. Chief Justice John Roberts released his annual report on the john roberts ofederal judiciary today, focusing on the judiciary’s response to allegations of sexual misconduct in the workplace. Roberts had discussed this issue in his 2017 report, after several female law clerks accused Judge Alex Kozinski – then a prominent judge on the U.S. Court of Appeals for the 9th Circuit – of inappropriate sexual conduct.

A working group created to review the safeguards in place to protect law clerks and other employees concluded, Roberts reported, that “inappropriate workplace conduct is not pervasive within the Judiciary, but it is also not limited to a few isolated instances involving law clerks” and “frequently goes unreported.” Roberts endorsed the recommendations made by the group, which included making changes to the codes of conduct for both judges and employees to make clear that both harassment and retaliation against employees who report misconduct are prohibited.

Roberts observed that he was “pleased” that the judiciary has “mobilized to ensure that” it is “the exemplary workplace that we all want,” but he added that “the job is not finished until we have done all that we can to ensure that all of our employees are treated with fairness, dignity, and respect.”

Dec. 28

SCOTUSblog, Civility and collegiality continued to be a theme in the Supreme Court justices’ appearances this month. Victoria Kwan, Dec. 28, 2018. On a December 7 visit to Duquesne University, Justice Sonia Sotomayor recounted a conversation about civility with the other justices. Previous justices were at times openly hostile to one another, and the court’s current era of collegiality is perhaps more of an exception than the rule.

sandra day oconnor oAccording to Sotomayor, retired Justice Sandra Day O’Connor (right) was in large part responsible for this change, initiating traditions such as justice lunches and making sure to speak to Chief Justice John Roberts, before she left the bench, about the importance of maintaining collegiality. Coverage of the event comes from the Pittsburgh Tribune-Review and the Pittsburgh Post-Gazette.

While recent headlines about Justice Ruth Bader Ginsburg have focused on her health – namely, her recovery from a fall that resulted in three broken ribs, followed by an operation to remove cancerous nodules from her lungs – the justice still found time for multiple public appearances this month, including two events to promote the new biopic “On the Basis of Sex.” On December 11, Ginsburg participated in a Q&A session with NPR reporter Nina Totenberg prior to a screening of the film at the National Archives Museum in Washington. “I’m feeling just fine,” she reassured the audience, according to Variety. “I am meeting with my personal trainer tomorrow.” Additional coverage comes from The Hollywood Reporter.

On December 18, Justice Samuel Alito (left) gave a lecture on globalization and the enforcement of human rights at the Europa Institut at the samuel alitoUniversity of Zurich. Alito spoke of the collision of abstract rights and tradition in the Supreme Court’s rulings on “liberty,” comparing the outcomes of the court’s assisted suicide and same-sex marriage cases.

Asked to comment on the perception of warring conservative and liberal wings of the Supreme Court, Alito answered: “There are cases in which we divide five to four… but when that happens, it’s based on differences in our ideas about how the Constitution should be interpreted and how statutes should be interpreted. It’s certainly not based on the party of the President who appointed us.” The University of Zurich posted video of Alito’s talk online.

Mueller's First SCOTUS Test

CNN, Government files sealed response to Supreme Court in mystery grand jury case, Mary Kay Mallonee, Dec. 28, 2018. The federal government responded Friday to Supreme Court Chief Justice John Roberts' issuance of a temporary pause on an order holding an unnamed, foreign government-owned company in contempt over a mystery court case related to special counsel Robert Mueller's investigation.

The government response was filed under seal ahead of Monday's deadline.

The company asked the Supreme Court to intervene after a federal appeals court ruling that ordered the company to comply with the subpoena, which required it to turn over "information" about its commercial activity in a criminal investigation. The Supreme Court action also paused fines the company was facing for every day of noncompliance.

Roberts could now refer the matter to the full court to determine the next step.

robert mueller full face fileIt would take votes from five justices to keep in place the pause of the contempt citation if the Supreme Court decides to take up a full review of the lower court rulings.

The company's challenge of the subpoena appears to have begun in September. In its ruling this past week, the US Circuit Court of Appeals for the District of Columbia offered few clues about the company and its country of origin or what Mueller's team sought.

This is the first known legal challenge apparently related to Mueller's investigation to make its way to the Supreme Court.

Roberts' original order put on hold the contempt citation issued by a DC federal judge against the company for refusing to comply with a grand jury subpoena, but only long enough for the justices to decide whether they want to intervene.

Dec. 23

ny times logoNew York Times, Analysis: Roberts, Leader of Supreme Court’s Conservative Majority, Fights Perception That It Is Partisan, Adam Liptak, Dec. 23, 2018. “We don’t work as Democrats or Republicans,” he has said, a theme he has returned to while trying to strike a delicate balance as the chief justice.

In his first 13 years on the Supreme Court, Chief Justice John G. Roberts Jr.’s main challenge was trying to assemble five votes to move the court to the right, though there were only four reliably conservative justices.

Now he faces a very different problem. With the retirement of Justice Anthony M. Kennedy and his replacement by Justice Brett M. Kavanaugh, the chief justice has the votes he needs on issues like abortion, racial discrimination, religion and voting. At the same time, he john roberts ohas taken Justice Kennedy’s place as the swing vote at the court’s ideological center, making him the most powerful chief justice in 80 years.

But all of that new power comes at a dangerous time for the court, whose legitimacy depends on the public perception that it is not a partisan institution. “We don’t work as Democrats or Republicans,” Chief Justice Roberts (right) said in republican elephant logo2016, and he reiterated that position in an extraordinary rebuke of President Trump last month.

He seemed to underscore that point again on Friday, joining the court’s four-member liberal wing, all appointed by Democratic presidents, to reject a request from the Trump administration in a case that could upend decades of asylum policy. This month, he drew sharp criticism from three conservative colleagues for voting to deny review in two cases on efforts to stop payments to Planned Parenthood.

Dec. 21

washington post logoruth bader ginsburg scotusWashington Post, Ruth Bader Ginsburg has surgery for malignant nodules in her lung, Robert Barnes and Laurie McGinley​, Dec. 21, 2018. The 85-year-old Supreme Court justice, right, is “resting comfortably,” and “there was no evidence of any remaining disease” after the surgery, the court said in a news release.

Dec. 20

ny times logoNew York Times, Opinion: A Supreme Court Divided. On the Right, Linda Greenhouse, Dec. 20, 2018. Is there a split among conservatives between ideology and the court’s long-term legitimacy? The Supreme Court’s docket-setting process, by which it selects less than 1 percent of the appeals that reach it every year, is a black box. The justices almost never explain at the time why they agree to hear one appeal or turn down another.

But in the case of the efforts by Louisiana and Kansas to “defund” Planned Parenthood — shorthand for disqualifying a health care provider from reimbursement eligibility under a state-administered Medicaid program for low-income individuals — the court’s three most conservative justices did us a great favor.

clarence thomas HRIn a dissenting opinion that can only be described as snarky, Justices Clarence Thomas (left), Samuel Alito and Neil Gorsuch did more than permit some light to enter the black box.

They trained a spotlight on the court’s most private proceeding, the weekly closed-door conference at which the justices, unaccompanied by law clerks or secretaries, meet to set the country’s legal agenda.

Based on the court’s online docket, we could deduce during the run-up to last week’s action that the cases were controversial inside the court....In other words, we have three conservative justices calling out two other conservative justices as wimps at best, unprincipled strivers for public approval at worst. And this may be just the tip of the iceberg.

Dec. 6

SCOTUSblog, Argument analysis: Majority appears ready to uphold “separate sovereigns” doctrine, Amy Howe, Dec. 6, 2018. When Terance Gamble was pulled over by police in Alabama three years ago for having a faulty headlight, he probably didn’t think that prosecutors would make a federal case out of it. And he certainly wouldn’t have imagined that his case would make national headlines – not so much for its own sake, but because of what a win for Gamble might mean for prosecutions arising from Special Counsel Robert Mueller’s investigation into possible Russian interference in the 2016 election.

Both of these things did happen, but after nearly 80 minutes of oral argument this morning, Gamble seemed unlikely to prevail on his argument that the federal charges against him violate the Constitution’s double jeopardy clause, which would in turn preserve the ability of state prosecutors to bring charges against defendants in the Mueller investigation even if they receive pardons from President Donald Trump for any federal charges brought against them.

Dec. 2

washington post logoWashington Post, Supreme Court to consider case that could affect potential Manafort prosecutions, Robert Barnes, Dec. 2, 2018. The Supreme Court next week takes up the case of a small-time Alabama felon, Terance Gamble, who complains that his convictions by state and federal prosecutors for the same gun possession crime violate constitutional protections against double jeopardy.

But likely to be watching the proceedings closely will be those concerned about a big-time felon, Republican consultant and former Trump campaign chairman Paul Manafort, who was prosecuted by special counsel Robert S. Mueller III for tax fraud.

With President Trump keeping alive prospects that he might pardon Manafort, Gamble v. United States might be redubbed Manafort v. Mueller, joked Thomas C. Goldstein, an attorney who regularly argues before the Supreme Court.

paul manafortThe outcome in the case could affect nascent plans by states to prosecute Manafort, left, under their own tax evasion laws — New York, in particular, has expressed interest — should Trump pardon Manafort on his federal convictions.

The Double Jeopardy Clause of the Constitution’s 5th Amendment prohibits more than one prosecution or punishment for the same offense. But the Supreme Court since the 1850s has made an exception, allowing successive prosecutions and punishments if one is brought by state prosecutors and the other by the federal government. (One early case from that time involved counterfeiting; another was prosecution of someone harboring a fugitive slave.)

In Gamble, the court is reconsidering these precedents. Almost none of the briefs filed in the case speculate on how a presidential pardon of a federal conviction would affect prosecutors at the state level should the so-called separate sovereigns doctrine be renounced.



Nov. 28

washington post logoWashington Post, Kavanaugh worried scandal would end his coaching days. Now he’s back on the court, Ann E. Marimow, Nov. 28, 2018 (print edition). The Supreme Court's newest justice has returned to lead his daughter’s basketball team.

Nov. 24

The Guardian, Opinion: If Trump is cornered, the judges he disdains may finally bring him down, Walter Shapiro, Nov. 24, 2018. The president thinks justice only matters as it affects him. As his defenders fall away, he may find this all too painfully true.

john roberts oA rational president, who had just bludgeoned Brett Kavanaugh onto the supreme court, would not jeopardize the long-awaited conservative majority by picking a fight with Chief Justice John Roberts, right. But rationality has never been Donald Trump’s strong suit when it comes to dealing with the judiciary.

Many phrases might describe Roberts’ 13 years as chief justice since he was appointed by George W Bush, but “hot-headed” is not among them. It presumably took dozens of provocations before he yielded to the temptation to instruct the president that with an independent judiciary, “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.”

Trump’s concept of justice pivots around a simple question: “Is it good for me or bad for me?”

Nothing better illustrates Trump’s solipsistic approach to crime and punishment than the recent revelation by the New York Times that last spring he talked about ordering the justice department to prosecute Hillary Clinton and James Comey.

As he pursued such thuggish fantasies, it is possible Trump was influenced by Saudi Arabia’s crown prince, Mohammed bin Salman, who had imprisoned hundreds of his political foes in the Ritz-Carlton hotel in Riyadh. (That, of course, was the more benevolent version of Prince Mohammed, before he became closely associated with a bone saw.)

In the American version of such a dragnet, you might see Robert Mueller confined to a room next to Elizabeth Warren with a couple of dozen recalcitrant federal judges down the hall. Of course, the incarcerated would be residing in a Trump hotel – and the president would be billing the federal government at inflated rates for its use.

The final line of defense of democratic values are judges and top law enforcement officials who answer to a higher loyalty than fealty to Trump. It would be both bracing and ironic if the president were ultimately thwarted by black-robed figures.

Nov. 23

washington post logoWashington Post, What Chief Justice Roberts could have told Trump but didn’t, Fred Barbash, Nov. 23, 2018 (print edition). The administration's extraordinary string of court defeats has come at the hands of judges across the country appointed by Republican as well as Democratic presidents.

As unusual as Roberts’s comments were, he could have said so much more, like maybe, you’ve got to be kidding, Mr. President, if you think your judicial problems are confined to “Obama” judges in a single circuit.

Nov. 22

john roberts twitter

U.S. Supreme Court Chief Justice John Roberts, nominated by GOP President George W. Bush (file photo)

washington post logoWashington Post, Rebuking Trump’s criticism of ‘Obama judge,’ Chief Justice Roberts defends judiciary as ‘independent,’ Felicia Sonmez, Nov. 22, 2018 (print edition). U.S. Chief Justice John Roberts on Wednesday issued an extraordinary statement in response to President Trump’s criticism of federal judges, one day after the president blamed an “Obama judge” for ruling against his administration’s ban on asylum for those who cross the border illegally.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement released the day before Thanksgiving. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

“That independent judiciary is something we should all be thankful for,” the statement concluded.

On Tuesday, Trump had told reporters outside the White House that he would file a “major complaint” against the federal judge who temporarily blocked his administration from denying asylum to migrants who illegally cross the southern border. See below for related articles on immigration and the courts.


Palmer Report, Opinion: You’d better believe Robert Mueller is investigating Anthony Kennedy’s connection to Trump-Russia, Bill Palmer, Nov. 18, 2018. Earlier, Palmer Report pulled together all the confirmed pieces of the puzzle when it comes to Donald Trump, Russia, Deutsche Bank, and retiring Supreme Court Justice Anthony Kennedy, shown below left. We argued that while the mountain of circumstantial evidence doesn’t prove anything, it’s the kind of situation that calls for a criminal investigation.

anthony kennedy oBased on the pattern we’ve watched play out with Robert Mueller over the past year, we can virtually guarantee you that one of two scenarios is true. Either Mueller and his team began investigating the Trump-Kennedy-Russia connection the minute it showed up in newspaper headlines last week, or Mueller and his team already knew about it and their investigation into it is well underway. How can we be so sure?

We’re looking at a situation where a Supreme Court Justice’s son used his position at a major bank to steer absurdly inappropriate loans to Donald Trump, at the same time that bank just happened to be laundering billions of dollars of Russian money into the hands of clients in the city where Trump lived, even as Russia was working to get Trump elected President, and then that same Justice stepped down at just the right time to help Trump. You’d better believe Robert Mueller is looking into something that obvious and ominous – and if it is indeed a criminal matter, he’ll pursue it and expose it.

Nov. 8

Justice Hurt In Fall

ny times logoNew York Times, Justice Ruth Bader Ginsburg Hospitalized With 3 Broken Ribs, Eileen Sullivan and Adam Liptak, Nov. 8, 2018. Justice Ruth Bader Ginsburg of the Supreme Court, shown in a file photo, was hospitalized on Thursday morning, with three broken ribs after falling in her office Wednesday evening, a spokeswoman said.

ruth bader ginsburg scotusJustice Ginsburg, 85, went home after her fall, but experienced discomfort over the night. She was admitted to George Washington University Hospital, where doctors found three broken ribs on her left side, Kathy Arberg, a Supreme Court spokeswoman, said in a statement.

The next sitting of the Supreme Court begins on Nov. 26, and Justice Ginsburg’s history suggests the injuries are not likely to keep her away. She broke two ribs in 2012, without missing work. And she returned to work quickly after undergoing a heart procedure in 2012. She is also a cancer survivor and returned to work less than three weeks after having surgery.

Even as Justice Ginsburg has shown she bounces back quickly from health setbacks, liberals have become jittery about how much more time she will be able to serve, particularly with the balance of the Supreme Court shifting to the right because of President Trump’s appointment of two conservative justices.


Oct. 23

sandra day oconnor cspan 2012 screenshot

washington post logoWashington Post, Sandra Day O’Connor says she is withdrawing from public life because of dementia, Robert Barnes​, Oct. 23, 2018. The retired Supreme Court justice (shown in a 2012 C-SPAN screenshot0, who was the first woman to serve on the high court, wrote in a letter that she wanted to “be open about these changes, and while I am still able, share some personal thoughts.”

Retired Supreme Court justice Sandra Day O’Connor, who became the first female justice in 1981 and then one of the court’s most influential members, announced Tuesday that she suffers from dementia and is “no longer able to participate in public life.”

sandra day oconnor oIn a letter released by her family, O’Connor, 88, said she wanted to “be open about these changes, and while I am still able, share some personal thoughts.”

She added: “How fortunate I feel to be an American and to have been presented with the remarkable opportunities available to the citizens of our country. As a young cowgirl from the Arizona desert, I never could have imagined that one day I would become the first woman justice on the U.S. Supreme Court.”

O’Connor, shown at right in an official photo, was nominated to the court by President Ronald Reagan, who was fulfilling a campaign pledge to name the first female justice. She served for a quarter-century, leaving to take care of her husband, John, who was diagnosed with Alzheimer’s disease.

O’Connor, who was born in El Paso, Texas, lives near her home in Phoenix.

One of her last interviews was in 2016, after the death of Justice Antonin Scalia. She said she did not agree with the strategy of Republican senators to keep the post open until after the presidential election.

ny times logoNew York Times, Opinion: The Far-Reaching Threats of a Conservative Court, Eric Posner (professor at the University of Chicago Law School), Oct. 23, 2018. Will the Supreme Court wipe out the government protections that have shielded Americans from abusive business practices since the New Deal?

With the start of the Supreme Court’s new term, many people are wondering whether the conservative majority, which has taken a further step to the right with the appointment of Brett Kavanaugh, will overturn Roe v. Wade.

But that’s not where the action is. As two cases argued before the court this month illustrate, the real question is whether it will undermine the system of government that has protected the public from abusive business practices since the New Deal.

The two cases might seem esoteric, and far removed from government protection of workers and consumers. Gundy v. United States involved a challenge to the attorney general’s extension of sex-crime-registration law to offenders convicted before the law was enacted. Nielsen v. Preap involved a government policy that deprived certain unauthorized immigrants of some procedural protections against deportation.

Liberals might root against the government — the immigration and sex offender policies are harsh. But they should be careful what they wish for. The conservative majority can, and most likely will, rule against the government using broad theories that would also eat away at the constitutional foundations of the New Deal system, which is essential for protecting health and safety, the environment and much else.

epa general logoSince the New Deal, Congress has authorized regulatory agencies to make policy by issuing regulations. These agencies are now a familiar part of our government. They include the Environmental Protection Agency, the National Labor Relations Board and the Federal Emergency Management Agency, which is currently aiding hurricane victims in Florida. Agency regulation became necessary as the problems of a modern industrialized nation overwhelmed the regulatory capacities of states, local governments and Congress itself.

The New Deal agencies initially encountered resistance from the Supreme Court, which was then, like now, a reactionary institution that frowned on novelty. For one thing, when agencies issue regulations, they make law, which was the traditional prerogative of Congress. Moreover, the agencies were mostly overseen by the White House, which is not supposed to make law. And Congress also gave many regulatory agencies some autonomy — protecting staff from removal, for example — that seemed to infringe on the president’s authority to supervise the executive branch.

By the 1980s, half a century after the New Deal, a political and legal consensus in favor of the administrative state had solidified. Left and right argued about how much regulation was needed, of course, but no one doubted the constitutional foundations of the administrative state — not even Justice Antonin Scalia, the leading conservative lawyer of the past half century and an academic expert on administrative law before he ascended to the bench.

But Brett Kavanaugh is a skeptic. And so are Neil Gorsuch, Donald Trump’s first appointment to the Supreme Court, and Clarence Thomas, who was appointed back in 1991. The views of Chief Justice John Roberts and Justice Samuel Alito are less clear, but their judicial opinions point in the same direction.

ny times logoNew York Times, Young People Are Suing the Trump Administration Over Climate Change. She’s Their Lawyer, John Schwartz, Oct. 23, 2018. If all goes as planned, Julia Olson will deliver her opening argument on Monday in a landmark federal lawsuit against the Trump administration on behalf of 21 plaintiffs, ages 11 to 22, who are demanding that the government fight climate change. It is a case that could test whether the judicial branch has major role to play in dealing with global warming, and whether there is a constitutional right to a stable and safe climate.

But as of now, less than a week before the trial is scheduled to start in Federal District Court in Eugene, whether the young people will get their day in court is still an open question. On Friday, Chief Justice John G. Roberts Jr. granted a Trump administration request to put a brief hold on the proceedings to consider government filings that could derail the case.

The lawsuit, Juliana v. United States, is the most visible case for Ms. Olson and her nonprofit organization, Our Children’s Trust. The group is involved in similar legal actions in almost every state, and other climate suits around the world.

Oct. 19

bill yeomans afj cropped CustomAlliance for Justice, Opinion: The Captured Court, Bill Yeomans, right, Oct. 19, 2018. In the aftermath of the Kavanaugh confirmation, Supreme Court justices have taken to public fora to assert the independence of the Court and to assure the public that the Court is not a political institution. Most prominently, Chief Justice Roberts distinguished justices from officials in the political branches, noting that “they speak for the people” while the justices “do not speak for the people, but we speak for the Constitution.”

As aspiration, Roberts’ comment shines, but in current context, it is a distraction from the stark reality that the Court is a political institution. It has been captured by the sustained effort of the Republican Party to distort the third branch of government into an instrument to promote a right-wing political agenda. While the justices will not decide cases in the language of partisan politics, the conservative majority will repeatedly reach results that match Republican political goals. The conservative justices were selected by political officials and confirmed through a highly partisan political process because they were reliable votes for those results. The product is a political institution.

The roots of the drive to reshape the Court to serve conservative political goals lie in the reaction of social conservatives against Brown v. Bd. of Education and Roe v. Wade, and the effort by Lewis Powell and others in the early 1970’s and thereafter to mobilize the business community to capture the courts. The Federalist Society and the Heritage Foundation were central to the rise of the organized conservative legal movement in the 1980’s. That movement focused on building a strong cadre of rising lawyers who could be appointed to the bench by Republican presidents. Each of the Republican appointed justices now sitting – Roberts, Thomas, Alito, Gorsuch, and Kavanaugh – has deep roots in the Federalist Society. Indeed, Gorsuch and Kavanaugh were selected by Trump from lists compiled specially for him by the Federalist Society and Heritage Foundation.

The justices were groomed to be reliable conservatives. Each served in one or more Republican administrations and each completed a successful tryout on a federal court of appeals. They were nominated for the Supreme Court because Republicans were confident there would be no surprises in their rulings. They were adherents to a legal philosophy (characterized by subtle variations that rarely affect results on major issues) that would produce outcomes that align almost perfectly with the Republican political agenda. By relying on their legal philosophy, they would exercise non-partisan judgment to interpret the laws and Constitution to promote Republican interests.

Reform the Supreme Court

brett kavanaughThe Kavanaugh confirmation debacle has justifiably left people angry. We must continue to process the allegations against Kavanaugh, right, the limitations imposed on the FBI investigation, and the suppression of documents by the White House and Senate Republicans. But it is also time to get serious about reforming the Supreme Court.The president and Republicans in the Senate have installed a radically conservative justice who was credibly accused of sexual assault and lied to the Judiciary Committee about matters ranging from his activities in the Bush White House to the meaning of his high school yearbook. They pressed ahead with a supremely flawed candidate to complete the right-wing takeover of the Court that has been a central Republican political goal for at least fifty years.

The Court is now indisputably a political institution in which Republican justices will move the law inexorably to the right in furtherance of the Republican agenda. By further weakening public confidence in the Court’s independence and neutrality, Republicans have damaged its legitimacy. Congress must begin to repair the Court.Proposals for essential reforms have been floating around for years, including adoption of a code of conduct for Supreme Court Justices, reform of recusal practices, limits on financial holdings and outside appearances, better policing of conflicts of interest, and the adoption of 18-year terms.

The elevation of Kavanaugh brings several of these reforms into play, but two stand out. First, Congress must impose a code of conduct and method for enforcement on Supreme Court justices, if the justices will not do it themselves. Judge Henderson, acting as Chief Judge of the D.C. Circuit because of Judge Garland’s recusal, referred to Chief Justice Roberts more than a dozen complaints filed against Judge Kavanaugh based on the confirmation process. Complaints filed against federal district court and court of appeals judges can be dismissed by the chief judge or referred to the circuit’s judicial council for fuller consideration. Henderson, apparently, thought these complaints were sufficiently meritorious to send forward.

It is common to ask the Chief Justice to refer the complaints to another circuit. The complaints were sent to Roberts before Kavanaugh’s swearing in. After Kavanaugh was sworn in, Roberts, in what appears to be a ministerial act, referred the complaints to Chief Judge Tymkovich of the Tenth Circuit. Tymkovich will almost certainly dismiss them now that Kavanaugh sits on the Supreme Court. Because the code of conduct and disciplinary process that govern court of appeals judges do not apply to Supreme Court justices, Kavanaugh will escape accountability. The law must be changed.

Congress also must address the issue of recusals. Currently, each justice decides whether or not to recuse him or herself from a matter and there is no requirement that a justice offer reasons. The bar and public, therefore, often can only speculate about a justice’s reasoning. That’s troubling since the Court’s legitimacy depends entirely on the justices’ written explanations of the bases for their decisions. Compounding the concern, the Chief Justice has suggested that justices are not bound by the existing recusal statute. Ideally, the Court should itself articulate clear standards and an improved process for recusal, but its failure to do so places the burden on Congress to act.

Kavanaugh’s angry, intemperate, and partisan tirade before the Judiciary Committee requires close monitoring of his recusal decisions. He denounced the Clintons, Democrats, and groups on the left, creating the appearance, at least, that he cannot fairly adjudicate claims involving them. While Congress faces legitimate separation of powers concerns in this area, it must act to the full extent of its constitutional authority to ensure that justices apply clear standards transparently when faced with recusal decisions.

Progressives also must begin thinking long term about expanding the Court. This change cannot happen until Democrats control the White House, the House, and 60 votes in the Senate.

bill yeomans afj cropped CustomBill Yeomans, right, is the Senior Justice Fellow for Justice at Alliance for Justice. He previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society.

Oct. 11

Oct. 11

Justice Integrity Project, Courts Continue Voter Suppression As Trump Celebrates With His Justice In Partisan White House Gala, Hatefest

By Andrew Kreig

The U.S. Supreme Court helped launch the Brett Kavanaugh era on Oct. 10 by curtailing the voting of Native Americans in North Dakota, where a tight Senate race threatens a Democrat who voted against Kavanaugh's recent confirmation.

brett kavanaugh white house promoThe court enabled a new state rule barring voters who use for election purposes Post Office boxes instead of street addresses. Many Native Americans living on reservations use only PO Boxes and have heavily supported Sen. Heidi Heitkamp, below, the incumbent Democrat who is now an underdog in her race.

heidi heitkamp oThe court's refusal to intervene follows its recent practice of avoiding review for the most part of voter suppression and gerrymandering efforts by Republican state officials who have taken major steps recently to reduce voter registrations and polling place en masse in ways that heavily disadvantage Democrats in November.

In the North Dakota case, five votes were needed from the nine justices. Kavanaugh, shown in a White House-promoted political-type photo of a kind unusual for a sitting justice, did not participate for unexplained reasons, presumably because of his busy schedule getting installed onto the court.

Several columns this week describe a looming legal crisis regarding election-rigging in next month's elections and beyond.

Update: Trump Administration Seeks to Stifle Protests Near White House and on National Mall.

Investigative reporter Greg Palast, who documented for the BBC in 2001 how Republicans had stolen the 2000 presidential election by eliminating the names of more than 100,000 suspected Democrats from voter rolls (and not by the few ballots with hanging "chads" described by the American media), published several investigations regarding secret cutbacks in 2018 voter rolls by Republican secretaries of state seeking to tilt next month's elections.

For example, he wrote for Truthout in GOP’s Brian Kemp Purged 1 in 10 Georgia Voters: I’ve Got the Names:

"My lawyer had to threaten Georgia Secretary of State Brian Kemp with a federal lawsuit to force him to turn over the names of over half a million voters whose citizenship rights he quietly extinguished," Palast began. "This past week, I released the name of every one of these Georgia voters Kemp flushed from voter rolls in 2017."

Yet all such legal actions and reporting is based on the increasingly quaint theory that federal courts will honestly address the election issues and not just endorse Republican vote suppression by 5-4 party line votes by justices installed like Kavanaugh after long involvement in extreme partisan politics, including dirty tricks at election time.

brett kavanaugh election fraud wmr graphicTaking another broad view, investigative reporter Wayne Madsen linked Kavanaugh with presidential election rigging in the United States with Karl Rove and in the Ukraine with Paul Manafort in 2004, as portrayed at right and as described in his column Exclusive Investigative Commentary: Bush backed Kavanaugh to keep election thefts of 2000 and 2004 a secret.

The column, based on Madsen's years of covering election frauds, linked Kavanaugh and Republican U.S. Sen. Bob Corker of Tennessee to the Bush dynasty and its election-rigging operation headquartered in Chattanooga, TN,  where Corker was mayor before his 2006 election to the senate.

Madsen thereby explained the all-out Bush team pressure that kept such supposed "moderates" as Corker and former Bush appointee Susan Collins as strong Kavanaugh supporters despite their supposed willingness to weigh evidence fairly about  allegations against the nominee. Collins is married to Thomas Daffron, a lobbyist with deep ties to the Bush administration and powerful corporations.

Also, Ohio-based investigative reporters/authors Robert Fitrakis and Harvey Wasserman published Will the Trump GOP Strip and Flip America's 2018 Election While the Democrats Fail to Protect the Vote?

djt brett kavanaugh anthony kennedy oct 8 2018 white houseEarlier this week, President Trump invited the newest justice and his family to the White House to reenact the official weekend swearing-in ceremony.

With Trump front and center and denouncing Democrats, the White House ceremony became a highly partisan attack by the president on "mobs" of protesters against the nominee.

Democrats and other protesters must be defeated at the polls in next month's elections to maintain law and order, the president urged as the new justice looked on during the celebration — thereby horrifying both Democrats and others who think presidents and judges should at least pretend to be non-partisan on formal occasions.

The spectacle was an especially flagrant disregard of norms for a non-partisan judiciary independent of party or president. That's because Kavanaugh, doubtless now deeply indebted to Trump, has argued that a president should not have to undergo civil or criminal litigation.

Oct. 10

bill palmerPalmer Report, Opinion: Chief Justice John Roberts just sold out Brett Kavanaugh, Bill Palmer, right, Oct. 10, 2018. Earlier this week we learned that a fellow judge on Brett Kavanaugh’s bench received a number of misconduct claims against Kavanaugh during his confirmation process, and referred those complaints to Supreme Court Chief Justice John Roberts, who hadn’t taken any action on the matter. But now things have changed in a big way.

At the time the complaints first became public knowledge, various legal observers explained that because the review process is a lengthy one, there was nothing that John Roberts could have done with the complaints that would have had any impact on Brett Kavanaugh’s confirmation hearings. But, as it turns out, Roberts didn’t simply decide to sit on his hands. He’s posted a public letter referring the complaints about Kavanaugh to the U.S. Court of Appeals. Although the letter doesn’t mention Kavanaugh by name, multiple major news outlets are confirming that Roberts is referring to Kavanaugh in the letter. So what now?

It’s important to keep in mind that John Roberts could have made these complaints go away simply by not referring them, and the odds are that most people would have ended up forgetting about the brief story about the complaints. Instead, by making an official referral, Roberts is opening a de facto misconduct investigation into Brett Kavanaugh, and he’s putting it in the hands of someone who is far removed from the political process that elevated Kavanaugh to begin with. So this is in fact something – even if we don’t yet know quite what it’ll lead to.

Oct. 9

washington post logomitch mcconnell2Washington Post, McConnell signals he would push to fill a Supreme Court vacancy in 2020, Elise Viebeck, Oct. 9, 2018 (print edition). Senate Majority Leader Mitch McConnell (R-Ky.) — who blocked President Barack Obama’s 2016 nominee to the Supreme Court for nearly a year amid widespread Democratic objections — signaled Monday that he would help fill a high-court vacancy if one emerges when President Trump is up for re­election in 2020.

Speaking at a news conference in Louisville, McConnell, right, said his decision to block Obama’s nominee, Judge Merrick Garland, was based on a tradition that opposition parties in control of the Senate do not confirm Supreme Court nominees during presidential election years.

He claimed the precedent only applies when different parties control the Senate and the White House — leaving open the possibility he would help advance a Trump nominee in 2020 if Republicans still hold a majority in the Senate.

ny times logoNew York Times, After a Bitter Fight, Justice Kavanaugh to Take the Bench, Adam Liptak, Oct. 9, 2018. Justice Brett M. Kavanaugh will hear his first Supreme Court arguments, all concerning enhanced sentences for gun crimes. None of the three cases raise major constitutional questions or involve pressing social issues.

ny times logoNew York Times, Only 114 people have served on the Supreme Court since it was established in 1789. Here’s how Justice Kavanaugh fits in, Karen Yourish, Sergio, Pecanha and Troy Griggs, Oct. 9, 2018 (print edition).  The first Catholic justice, Roger B. Taney, joined the court in 1836 and the first Jewish justice, Louis Brandeis, was seated in 1916. A majority of justices have been Protestant — until recently. The court had its first Catholic majority in 2006, and this will continue with the addition of Justice Kavanaugh.

ny times logoNew York Times, Trump Seeks to Make Furor a Campaign Asset, Not a Liability, Peter Baker, Oct. 9, 2018 (print edition). As he prepared to hold a ceremonial swearing-in of Justice Kavanaugh, President Trump dismissed sexual misconduct accusations as “fabricated.”

washington post logoWashington Post, Trump stokes tensions over Kavanaugh confirmation battle, Ashley Parker and John Wagner, Oct. 9, 2018 (print edition). At a White House ceremony, President Trump apologized to Supreme Court Justice Brett M. Kavanaugh and his family for the “terrible pain and suffering” they endured after his confirmation was marred by accusations of sexual misconduct.

ny times logopaul krugmanNew York Times, Opinion: The Paranoid Style in G.O.P. Politics, Paul Krugman, right, Oct. 9, 2018 (print edition). Republicans are an authoritarian regime in waiting.

Many people are worried, rightly, about what the appointment of Brett Kavanaugh means for America in the long term. He’s a naked partisan who clearly lied under oath about many aspects of his personal history; that’s as important as, and related to, the question of what he did to Christine Blasey Ford, a question that remains unresolved because the supposed investigation was such a transparent sham. Putting such a man on the Supreme Court has, at a stroke, destroyed the court’s moral authority for the foreseeable future.

But such long-term worries should be a secondary concern right now. The more immediate threat comes from what we saw on the Republican side during and after the hearing: not just contempt for the truth, but also a rush to demonize any and all criticism. In particular, the readiness with which senior Republicans embraced crazy conspiracy theories about the opposition to Kavanaugh is a deeply scary warning about what might happen to America, not in the long run, but just a few weeks from now.

Oct. 8

Supreme Court Swearing-in

djt brett kavanaugh anthony kennedy oct 8 2018 white house

Retired Justice Anthony Kennedy, right, ceremonially swears-in Supreme Court Justice Brett Kavanaugh, as President Donald Trump looks on, in the East Room of the White House, Oct. 8, 2018. Susan Walsh / AP

abc news logoABC News, Trump apologizes 'on behalf of the nation' to Kavanaugh during swearing-in, claims he was 'proven innocent,' Adam Kelsey and Meridith McGraw, Oct. 8, 2018. President Donald Trump apologized to incoming Supreme Court Justice Brett Kavanaugh Monday evening "for the terrible pain and suffering" that he and his family endured during his confirmation process, going so far as to claim that Kavanaugh was "proven innocent" of the sexual assault allegations made against him.

Trump's comments, which he acknowledged as outside of the norm just prior to making them, came at a ceremonial swearing-in event for Kavanaugh in the East Room of the White House, two days after Kavanaugh was confirmed by the Senate and formally sworn-in as a member of the court by Chief Justice John Roberts.

"On behalf of the nation, I'd like to apologize to Brad and the entire a Kavanaugh family for the terrible pain and suffering you've been forced to endure," Trump said. "Those who stepped forward to serve our country deserve a fair and dignified evaluation. Not a campaign of political and personal destruction based on lies and deception."

Trump addressed the controversy head-on characterizing the heated political debate over sexual assault allegations leveled against Kavanaugh by California professor Christine Blasey Ford and several other women as "violat[ing] every notion of fairness, decency and due process."

"[In] our country, a man or a woman must always be presumed innocent unless and until proven guilty," the president continued. "And with that, I must state that you, sir, under historic scrutiny, were proven innocent."

nbc news logoNBC News, Hillary Clinton calls Kavanaugh's ceremonial swearing-in a 'political rally,' Adam Edelman, Oct. 9, 2018. Trump's remarks at the White House event "further undermined the image and integrity of the court," the former secretary of state said.

Hillary Clinton on Tuesday ripped President Donald Trump’s unusual handling of the ceremonial swearing-in for Supreme Court Justice Brett Kavanaugh, calling the display a "political rally" that "further undermined the image and integrity of the court."

hillary clinton gage skidmore peoria azIn an interview with CNN's Christiane Amanpour, parts of which aired Tuesday morning on the network, Clinton (shown in a file photo by Gage Skidmore) said that the way Trump carried out the event "troubles me greatly."

"What was done last night in the White House was a political rally. It further undermined the image and integrity of the court," Clinton said, "and that troubles me greatly. It saddens me because our judicial system has been viewed as one of the main pillars of our constitutional government."

"So I don't know how people are going to react to it. I think given our divides it will pretty much fall predictably between those who are for and those who are against," she added, calling Trump “true to form.”

"He has insulted, attacked, demeaned women throughout the campaign. Really for many years leading up to the campaign — and he's continued to do that inside the White House," Clinton said.

Trump responded on Tuesday to Clinton's comments, saying, "I guess that's why she lost. She never got it."

GOP Election Scandals

brett kavanaugh election fraud wmr graphic

Wayne Madsen Report (WMR), Exclusive Investigative Commentary: Bush backed Kavanaugh to keep election thefts of 2000 and 2004 a secret, Wayne Madsen, Oct. 8, 2018 (Subscription required, $30 annually; excerpted with permission.)

karl rove HR"Bush White House aides Brett Kavanaugh and Karl Rove, left, closely coordinated their election fraud operations with two experienced Washington campaign advisers for Republican candidates, Rick Davis, and Davis's partner, Paul Manafort."

wayne madsen trumps bananas coverNote: Former Navy intelligence officer, NSA analyst and defense contractor computer scientist Wayne Madsen for many years has exposed techniques to rig U.S. and international elections, electronically and by other methods. He is the author of 16 books, including the just-published "Trump's Bananas Republic," which portrays administration scandals through the lens of iconic Hollywood movies.

SCOTUSblog, Court stays out of North Dakota voting dispute, Amy Howe, Oct. 9, 2018. The Supreme Court today declined to intervene in a challenge to a North Dakota law that requires voters to present identification that includes a current residential street address. Lawyers say that the ruling will prevent thousands of Native American voters (and tens of thousands of North Dakota residents who are not Native Americans) from casting a ballot in the upcoming 2018 election in a state that could play a key role in Democrats’ efforts to retake the U.S. Senate.

A group of Native American voters in North Dakota have challenged the law, telling the courts that the requirement that voters present identification bearing a street address could pose an obstacle to voting for Native Americans in several ways. Native Americans often live on reservations or in other rural areas where people do not have street addresses; even if they do, lawyers for the challengers argue, those addresses are frequently not included on tribal IDs. Moreover, the lawyers add, Native Americans in North Dakota are “disproportionately homeless.”

In April, a federal district court in North Dakota ordered the state to allow voters to cast ballots as long as they could show IDs that had either a current street address or a current mailing address, such as a P.O. box. The state followed that order in the June primaries, but in September the U.S. Court of Appeals for the 8th Circuit put the district court’s order on hold.

The challengers’ request went originally to Justice Neil Gorsuch, who handles emergency appeals from the 8th Circuit, but he referred it to the full Supreme Court — a fairly common practice. To stay the 8th Circuit’s ruling and prevent the state from enforcing the ID requirement, the challengers needed at least five of the eight justices (Justice Brett Kavanaugh did not participate) to vote in their favor.

But they apparently fell short. Justice Ruth Bader Ginsburg dissented from the court’s decision not to intervene, in a brief opinion that was joined by Justice Elena Kagan. Ginsburg complained that the “risk of voter confusion appears severe here because the injunction against requiring residential-address identification was in force during the primary election and because the Secretary of State’s website announced for months the identification requirements as they existed under that injunction.”

Ginsburg acknowledged that, as the 8th Circuit had emphasized, the elections are still a month away. However, Ginsburg stressed, tens of thousands of North Dakotans don’t have an ID bearing their residential street address. As a result, she warned, the 8th Circuit’s order “may lead to voters finding out at the polling place that they cannot vote because their formerly valid ID is now insufficient.”

Climate Change

washington post logoWashington Post, World has just over a decade to get control of climate change, U.N. scientists say, Chris Mooney and Brady Dennis. Oct. 8, 2018 (print edition). “There is no documented historic precedent" for the scale of changes required, the body found.

The report warns of dire consequences if nations do not cut their carbon emissions by more than 1 billion tons per year, a figure that is larger than the annual emissions of nearly every country on the planet.

Supreme Court Battle

washington post logoWashington Post, Opinion: We need to stay angry about Kavanaugh, E.J. Dionne Jr., Oct. 8, 2018 (print edition). But even more, we need to vote, organize and think boldly after this travesty.

Republicans rushed through Brett M. Kavanaugh’s confirmation to avoid the possible consequences of an election. They aborted a full investigation because they feared what it might find. They made themselves complicit in a presidential attack on Christine Blasey Ford, a brave woman who asked only that her case against Kavanaugh be taken seriously.

After all these outrages, there will be calls for a renewal of civility, as if the problem is that people said nasty things about one other. But the answer to this power grab cannot be passive acceptance in the name of being polite. The causes and consequences of what just happened must be acknowledged frankly.

brett kavanaugh.judgeLThe conservative struggle for the court began in the 1960s, but it hit its stride in the Bush v. Gore decision after after the 2000 election. Five conservative justices violated the principles they claimed to uphold on states’ rights and the use of equal-protection doctrine to stop a recount of votes in Florida requested by Al Gore, the Democratic nominee. They thus made George W. Bush president.

The pro-Bush justices made abundantly clear that they were grasping at any arguments available to achieve a certain outcome by declaring, “our consideration is limited to the present circumstances.” Translation: Once Bush is in, please forget what we said here.

washington post logoWashington Post, Justices move to repair Supreme Court’s image after fight over Kavanaugh, Robert Barnes, Oct. 8, 2018 (print edition). As Brett M. Kavanaugh prepared for his debut on the high court, his colleagues already had moved quickly to paper over the damage from the bitter and tumultuous confirmation battle.

brett kavanaugh swear in kennedy

Former Supreme Court Justice Anthony Kennedy swears in his former clerk Brett Kavanaught as the new justice's family looks on (Supreme Court photo)

Palmer Report, Opinion, Anthony Kennedy’s retirement, which had Trump-Russia fingerprints all over it, is a bigger scandal than ever, Bill Palmer, Oct. 8, 2018. It was an instantly explosive scandal, with ramifications deep and wide enough to shake American democracy to its core – and then almost as instantly, the mainstream media simply abandoned its coverage. Supreme Court Justice Anthony Kennedy cast an uncharacteristic vote in Donald Trump’s favor on the Muslim Ban, then abruptly announced his retirement the next day (even though he had already hired clerks for the upcoming session), just as we were learning that Kennedy’s son was deeply caught up in the Trump-Russia scandal.

On June 28th of this year, just as Anthony Kennedy was announcing the end of his Supreme Court tenure, the New York Times reported that his son Justin Kennedy “spent more than a decade at Deutsche Bank, eventually rising to become the bank’s global head of real estate capital markets, and he worked closely with Mr. Trump when he was a real estate developer.” This was particularly noteworthy considering that not too long ago, Deutsche Bank was busted for having laundered billions of dollars of Russian money into the hands of unnamed clients in cities including – ahem – New York City.

So was Justin Kennedy the secret conduit for the Kremlin to criminally launder money into the hands of Donald Trump, or was Kennedy totally uninvolved in any such hijinks, and he just happened to be in the wrong place at the wrong time? We don’t know the answer, because the major media outlets – who have the inside sources and investigative resources to expose these kinds of things – completely dropped the story. In the name of trying to get somewhere on this crucial but dry-docked scandal, I’m going to present one possible theory of what could have happened.

Let’s say – hypothetically, because there is no proof of this – that Justin Kennedy was indeed a criminal money launderer for Donald Trump and Russia. let’s further say that once the media dredged this up, Anthony Kennedy realized he was going to need to find a way to bail his son out. The easiest path of course would be a presidential pardon. Let’s say that Kennedy asked Trump to pardon his son, and that Trump agreed to it on one condition: Kennedy had to immediately retire. This would hand Trump a key victory – getting to appoint a Supreme Court Justice while the Republicans still safely had control of the Senate before the midterms.

The scary part is that, while this would represent one of the most criminally scandalous corrupt bargains in the history of the United States government, it doesn’t sound that crazy. It’s also worth pointing out that there is no plausible above-board explanation for some of the things that have transpired here. What are the odds that Kennedy would happen to make his retirement decision at the same time his son was being exposed, and that these two events were somehow related? It’s time for the major media outlets to do their jobs and dig up the real story here.

Oct. 7

brett kavanaugh swear in oct 6 2018 ashley

Supreme Court Associate Justice Brett Kavanaugh, as his wife Ashley and two daughters look on, is sworn onto the court by Chief Justice John Roberts, whom Kavanaugh recommended for the court as Bush Administration White House Staff secretary (Supreme Court photo, Oct. 6, 2018). A political precedent used during the Republican installation of Associate Justice Clarence Thomas was to rush the swear-in in order to limit the impact of new scandal and protest for the lifetime appointment.

ny times logorepublican elephant logoNew York Times, Kavanaugh Is Sworn In After Close Confirmation Vote in Senate, Sheryl Gay Stolberg, Oct. 7, 2018 (print edition). Judge Brett M. Kavanaugh was confirmed to the Supreme Court on Saturday by one of the slimmest margins in American history, locking in a solid conservative majority on the court and capping a rancorous battle that began as a debate over judicial ideology and concluded with a national reckoning over sexual misconduct.

He was promptly sworn in by both Chief Justice John G. Roberts Jr. and the retired Justice Anthony M. Kennedy — the court’s longtime swing vote, whom he will replace — in a private ceremony.

brett kavanaugh zina bash c span sept 2018

washington post logoWashington Post, Divided Senate confirms Kavanaugh’s Supreme Court nomination, Seung Min Kim and John Wagner, Oct. 7, 2018 (print edition). The Senate voted to confirm Judge Brett M. Kavanaugh as the Supreme Court’s 114th justice on Saturday by one of the narrowest margins in the institution’s history, as police stood guard and protesters’ shouts of “shame, shame” echoed through the Senate chamber.

The 50-to-48 vote capped a brutal confirmation fight that underscored how deeply polarized the nation has become under President Trump, who has now successfully placed two justices on the nation’s highest court, cementing a conservative majority.

With Vice President Pence presiding, senators sat in their chairs and rose to cast their votes, repeatedly interrupted by protesters in the visitors’ gallery who yelled out and were removed by Capitol Police. The Supreme Court announced Kavanaugh would be sworn in later Saturday.

washington post logoWashington Post, ‘Rock bottom’: Supreme Court fight reveals a country on the brink, Michael Scherer and Robert Costa​, Oct. 7, 2018 (print edition). In the battle over Brett M. Kavanaugh, few of the players emerged from the process unchanged or unblemished, underscoring the uncharted territory of deepening distrust and polarization that now defines the American system.

washington post logoWashington Post, Opinion: They left no doubt what they think of women, Jennifer Rubin, Oct. 7, 2018. Sen. Orrin Hatch (R-Utah) barked at female sex-crime victims, “Grow up!” He called Christine Blasey Ford a “pleasing” witness. He shooed women away with a flick of his wrist.

Hatch also posted “an uncorroborated account from a Utah man questioning the legitimacy and sexual preferences” of Julie Swetnick, one of Brett M. Kavanaugh’s accusers. The Salt Lake Tribune editorial board raked him over the coals:

Oct. 6

GOP Wins Court Battle

republican elephant logo

washington post logoWashington Post, ‘Ultimate fighter’: How Trump helped shift momentum in favor of Kavanaugh, Philip Rucker, Ashley Parker, Sean Sullivan and Seung Min Kim, Oct. 6, 2018 (print edition). Relying on a hardball approach that left Democrats shaken and defeated, Republican leaders plowed through the chaos of the last few weeks to bring the Supreme Court nomination of Brett M. Kavanaugh to the cusp of confirmation.

ny times logoNew York Times, Opinion: The High Court Brought Low, The Editorial Board, Oct. 6, 2018 (print edition). Don’t let Donald Trump and Brett Kavanaugh have the last word about American justice.

The task of plugging the holes and patching the rents in the court’s legitimacy now falls to the justices themselves, mainly to Chief Justice John Roberts Jr. (shown at left) He john roberts omust know that every decision of political significance rendered by a 5-to-4 majority that includes a Justice Kavanaugh will, at the very least, appear to be the product of bias and vengeance. If he cares about the integrity of the court as much as he claims to, the chief will do everything in his power to steer the court away from cases, and rulings, that could deepen the nation’s political divide.

There’s work the rest of us can do as well.

We can, for one thing, find ways in our own workplaces and communities to assure victims of sexual assault that they will be respected if they come forward, even if so many national political figures are dismissive of them.

And if we disapprove of the direction of the courts, we can put the lessons Mitch McConnell taught us to work — and vote.

It’s worth noting that, of the five justices picked by Republicans, including Judge Kavanaugh, four were nominated by presidents who first took office after losing the popular vote. And the slim majority of senators who said they would vote to confirm Judge Kavanaugh on Saturday represent tens of millions fewer Americans than the minority of senators who voted to reject him. The nation’s founders were wise to design the court as a counter-majoritarian institution, but they couldn’t have been picturing this.

Most Americans are not where this Senate majority is. They do not support President Trump. They do not approve of relentless partisanship and disregard for the integrity of democratic institutions. And they have the power to call their government to account.

chuck grassley screams at patrick leahy confidential records screenshot

Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) screams at his longtime Democratic colleague Pat Leahy of Vermont during the Kavanaugh hearing, in which Leahy and other Democrats have accused the nominee of perjuring himself by denying use of stolen Democratic Senate documents (screenshot).

washington post logoWashington Post, Grassley suggests absence of GOP women on Judiciary Committee is due to its heavy workload, Paul Kane, Oct. 6, 2018 (print edition). Sen. Charles E. Grassley (R-Iowa) told reporters that the Senate Judiciary Committee’s inability to attract Republican women might be caused by its heavy workload, a remark the panel’s chairman tried to retract a few minutes later.

“It’s a lot of work — maybe they don’t want to do it,” Grassley told the Wall Street Journal, NBC News and other outlets, as he headed toward the Senate floor for a speech by Sen. Susan Collins (R-Maine).

The committee, which has turned into a partisan hotbed in the past five years, has never had a Republican woman serve on it, even as the Senate’s ranks have doubled from three to six female GOP senators in recent years.

That omission drew more scrutiny during the second round of hearings for Judge Brett M. Kavanaugh’s nomination to the Supreme Court, during which committee Republicans hired a female prosecutor from Arizona to question Christine Blasey Ford about her allegations that Kavanaugh sexually assaulted her 36 years ago.

washington post logomitch mcconnell2Washington Post, The politicians and players whose legacies will be shaped by the Kavanaugh fight, Amber Phillips, Oct. 6, 2018 (print edition). How they navigated the emotionally fraught Supreme Court nomination battle could define their careers. This was a Supreme Court nomination that will go down in the history books. If confirmed, Kavanaugh will have overcome accusations of sexual misconduct and assault, questions about his judicial temperament and surprise delays to his confirmation.

Roll Call, Brett Kavanaugh to Be Rare Beneficiary of Senate Paired Voting, Niels Lesniewski, Oct. 6, 2018. Votes of Republicans Lisa Murkowski and Steve Daines will be offset [With 50-48 confirmation margin projected and no GOP "no" votes].

When the Senate votes to confirm Brett Kavanaugh to the Supreme Court on Saturday, two senators will engage in a practice that’s all but died out. Sen. Lisa Murkowski of Alaska, the only member of the Republican Conference opposed to elevating the current D.C. Circuit Court judge to the Supreme Court, announced Friday that ordinarily she would vote “no.” Instead, Murkowski intends to vote “present” in order to offset the absence of Republican Sen. Steve Daines, who will be in Montana to attend to his daughter’s wedding.

The vote on confirmation is expected late afternoon on Saturday.

lisa murkowski oMurkowski said in her floor speech that she hoped after the bitter debate over Kavanaugh that the Senate could take a few steps back toward a more respectful tone.

“While I voted no on cloture today, and I will be a no tomorrow,” she said Friday evening, “I will, in the final tally, be asked to be recorded as present, and I do this because a friend, a colleague of ours, is in Montana this evening and tomorrow at just about the same hour that we’re going to be voting; he’s going to be walking his daughter down the aisle and he won’t be present to vote, and so I have extended this as a courtesy to my friend.”

“It will not change the outcome of the vote, but I do hope that it reminds us that we can take very small, very small, steps to be gracious with one another and maybe those small, gracious steps can lead to more,” Murkowski said.

Oct. 5

Supreme 'Deep State'

Global Research, Opinion: High Crimes and Misdemeanours of Kavanaugh and the Senate-Trump Faction. Step-by-step Overthrow of the Rule of Law, John McMurtry and Matthew Stanton, Oct. 5, 2018. Despite the historic stakes of the ram-through appointment to the Supreme Court of the United States of a serial liar and alleged early rapist, who loudly denounces his Senate questioners as a “left-wing conspiracy” – sniffing all the time as his habit – there has been no legal analysis of his abetted crimes of persistent false statements and declarations, and factional subversion of the rule of law and the US Constitution itself.

As law and moral philosophy professors writing just as the White-House-counsel controlled FBI ‘investigation’ is hidden under cover from citizens and the press, we are moved by duty to explain what has so far been lost in media melodrama, political cover-up at the highest levels, he-says-she-says reductions, and the politics of effectively usurping the rule of law in the United States.

As a branch of government it is unique from the other two branches of government – the legislative. and executive branches – in that the supreme Justices are arbiters of what is allowed or prevented by the US Constitution as the ultimate source of the rule of law in America. What if the entire process is led by a long train of proved false declarations, persistently intentional misdirection, and perjury under oath with no restraint?

What if in all evident respects the process and appointment to the highest judicial office of the land operates like a criminal conspiracy with a vice-grip on all three branches of government – in the words of Madison, the very definition of ‘tyranny’ – with now the Supreme Court itself fixed to ignore and override basic issues of justice and morality for the next generation in a situation of cumulatively unprecedented social and environmental crisis?

We have already seen the unraveling of even the need to appear objective, disinterested, above the political mob mentality and thuggery of this ruling faction in one long train of abuses, false statements and lying with impunity under oath. The reckless and grasping nature of the Kavanaugh appointment, in short, shows an unbound faction of power treating its position of tyrannical rule as its personal property and right. Step-by-step overthrow of the rule of law

What has happened in Washington DC with the Kavanaugh hearings is of grave concern to anyone who believes in the democratic rule of law over a moneyed faction fixing all legal process. What this hearing and FBI investigation now controlled by the White House Counsel and ranking Senate Republicans shows is a series of non-stop false statements and actions that attack the very heart of our system of laws and poison the soul of the nation.

In our considered legal and moral opinion, Kavanaugh’s continual false declarations and prevarications are grounds for impeachment in even his current position of Federal Court Judge. In our judgement, with which many will agree, Trump’s candidate Kavanaugh has incontestably demonstrated unfitness for any judicial or public office. His speech and actions under oath, to the US Senate, is enough to be disbarred and lose his law license.

Kavanaugh has been so continuously coached from the highest offices of the land to act above the lawin every regard that this corrupt appointment reaches into the depths of a ‘tyrannical faction’ now in control of our federal government and institutions. It has so overreached in lawless and naked abuse of power that only keeping the public in ignorance can allow it to continue into the mid-term elections this November – the acid test of US democracy which is now before us.

Roll Call, Kavanaugh Nomination Clears Key Hurdle, Final Vote Teed Up, John T. Bennett, Oct. 5, 2018. Embattled federal judge Brett Kavanaugh moved one step closer to becoming the ninth Supreme Court justice and providing a decisive fifth conservative vote Friday when the Senate voted to tee up a final up-or-down vote.

lisa murkowski oIn a vote that broke mostly along party lines after several deeply partisan weeks that culminated with a FBI investigation into sexual misconduct charges against Kavanaugh dating to his high school days, the chamber voted to end debate on his nomination, 51-49.

There were a couple of party defections. Sen. Lisa Murkowski, R-Alaska, right, voted against cutting off debate, while Sen. Joe Manchin III, D-W.Va., voted “yes” to cut off debate. The result means the Senate is poised to decide his fate in a high-stakes Saturday vote.

Roll Call, Susan Collins Will Vote ‘Yes’ on Kavanaugh Nomination, Staff report, Oct. 5, 2018. Maine Republican had kept her position on the Supreme Court nomination under wraps. Sen. Susan Collins will vote “yes” on the Supreme Court nomination of Brett Kavanaugh, one of the last remaining hurdles to the high court susan collins ofor President Donald Trump’s nominee.

Earlier on Friday, the Maine Republican, left, voted to cut off debate on Kavanaugh’s nomination, helping her leadership clear a key hurdle and setting up a final confirmation vote on Saturday. Collins is one of only two Republicans senators serving who voted to confirm Justices Sonia Sotomayor and Elena Kagan, both of whom were nominated by former President Barack Obama. Sen. Lindsey Graham, R-S.C., is the other one.

Roll Call, Joe Manchin a Yes on Kavanaugh Nomination and Might Be Only Democrat, Staff report, Oct. 5, 2018. Sen. Joe Manchin III, D-W.Va., will vote to confirm Brett Kavanaugh to joe manchin othe Supreme Court, and might end up the only Democrat to do so.

“I have reservations about this vote given the serious accusations against Judge Kavanaugh and the temperament he displayed in the hearing. And my heart goes out to anyone who has experienced any type of sexual assault in their life. However, based on all of the information I have available to me, including the recently democratic donkey logocompleted FBI report, I have found Judge Kavanaugh to be a qualified jurist who will follow the Constitution and determine cases based on the legal findings before him. I do hope that Judge Kavanaugh will not allow the partisan nature this process took to follow him onto the court,” Manchin said in a statement.

Manchin announced his decision moments after Sen. Susan Collins, R-Maine, said she would vote to confirm Kavanaugh, virtually guaranteeing the federal circuit court judge’s ascent to the high court.

ny times logoNew York Times, Senate Moves Toward Showdown Vote on Kavanaugh Confirmation, Nicholas Fandos and Sheryl Gay Stolberg, Oct. 5, 2018. Republican leaders were increasingly confident that the Senate would narrowly vote to cut off debate on Judge Brett M. Kavanaugh’s nomination and move to a final confirmation on Saturday. But with four senators, including three Republicans, still undecided, Judge Kavanaugh’s confirmation was still not assured.

whowhatwhy logoWhoWhatWhy, Exclusive: Kavanaugh Father-Son Cancer Powder Keg, Doug Vaughan, Oct. 5, 2018. If Justice Brett Kavanaugh is confirmed by the Senate, sooner or later he may be asked to weigh some damning evidence — that his own father advocated for a product that he knew was carcinogenic to both mothers and fetuses. Unless he recuses himself.

The ironies are piquant: While the son attended private, single-sex religious schools and adopted the traditional Catholic opposition to abortion, and even birth control, on the grounds the government should regulate women’s use of their own bodies and reproduction, the father made millions from the industry that marketed and sold female personal hygiene products — while keeping the government from guarding the consumers’ health and safety.

It’s no exaggeration that, if Brett Kavanaugh is confirmed, stuff like baby powder will have smoothed his slide into a seat on the highest court in the land.

More than 10,000 active claims in US courts, mostly by women, allege that they got cancer from regular use of talcum products like baby powder. In one case last summer, a jury in Missouri awarded $4.7 billion to a group of 20 such women who sued the biggest manufacturer, Johnson & Johnson — for promoting its products while hiding evidence of the risks to women, their reproductive organs, and their babies.

Sooner or later, one of these cases is likely to come to the Supreme Court. If he’s confirmed by the Senate, and if he fails to recuse himself, Justice Brett Kavanaugh will be asked to consider evidence that his father, Ed, helped J&J market such products — even though they knew they were carcinogenic. Kavanaugh Sr.’s former employer is one of the named defendants in some of the biggest class-action cases filed so far.

washington post logoWashington Post, Analysis: If Kavanaugh is confirmed, impeachment could follow. Here’s how, Deanna Paul, Oct. 5, 2018 (print edition). Whether Kavanaugh returns to the D.C. Circuit or, as appears increasingly likely, is confirmed to the Supreme Court, impeachment proceedings could follow. They would be contingent on Democrats regaining control of the House, the only body that can bring an article of impeachment.

brett kavanaugh“Much of Washington has spent the week focusing on whether Judge Brett Kavanaugh should be confirmed to the Supreme Court,” Lisa Graves wrote in a Slate column on Sept. 7, more than a week before the New Yorker published the then-anonymous sexual assault claims of Christine Blasey Ford. “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.”

Graves wrote that Kavanaugh, right, had misled the Judiciary Committee about the stolen documents that Graves had written as chief counsel for nominations for Sen. Patrick J. Leahy (D-Vt.) when he was the chairman of the committee. Kavanaugh, she wrote, “lied. Under oath. And he did so repeatedly.” Therefore, she concluded, “he should not be confirmed. In fact, by his own standard, he should clearly be impeached.”

supreme court building

ny times logoNew York Times, Opinion: The Supreme Court’s Legitimacy Crisis, Michael Tomasky (editor of "Democracy: A Journal of Ideas" and a contributing New York Times opinion writer), Oct. 5, 2018. It’s not about Brett Kavanaugh’s alleged behavior. It’s about justices who do not represent the will of the majority..

Donald Trump won just under 46 percent of the popular vote and 2.8 million fewer votes than Hillary Clinton. And Judge Gorsuch was confirmed by a vote of 54-45. According to Kevin McMahon of Trinity College, who wrote all this up this year in his paper “Will the Supreme Court Still ‘Seldom Stray Very Far’?: Regime Politics in a Polarized America,” the 54 senators who voted to elevate Judge Gorsuch had received around 54 million votes, and the 45 senators who opposed him got more than 73 million. That’s 58 percent to 42 percent.

And if the Senate confirms Brett Kavanaugh, the vote is likely to fall along similar lines, meaning that we will soon have two Supreme Court justices who deserve to be called “minority-majority”: justices who are part of a five-vote majority on the bench but who were nominated and confirmed by a president and a Senate who represent the will of a minority of the American people.

And consider this further point. Two more current members of the dominant conservative bloc, while nominated by presidents who did win the popular vote, were confirmed by senators who collectively won fewer popular votes than the senators who voted against them.

They are Clarence Thomas, who was confirmed in 1991 by 52 senators who won just 48 percent of the popular vote, and Samuel Alito, confirmed in 2006 by 58 senators who garnered, again, 48 percent of the vote. This is a severe legitimacy crisis for the Supreme Court.

The court, as Professor McMahon notes, was intended never to stray far from the mainstream of American political life. The fact that justices represented that mainstream and were normally confirmed by lopsided votes gave the court’s decisions their legitimacy. It’s also why past chief justices worked to avoid 5-4 decisions on controversial matters: They wanted Americans to see that the court was unified when it laid down a major new precedent.

But now, in an age of 5-4 partisan decisions, we’re on the verge of having a five-member majority who figure to radically rewrite our nation’s laws. And four of them will have been narrowly approved by senators representing minority will.

Judge Kavanaugh’s alleged youthful behavior is a scandal, but this legitimacy crisis is one too, and with arguably greater consequences. Mitch McConnell, the Senate majority leader, may not care about them. But Chief Justice John Roberts, and for that matter Brett Kavanaugh, surely should.

washington post logoWashington Post, Kavanaugh: I said things I ‘should not have said’ at hearing, Eli Rosenberg, Oct. 5, 2018 (print edition). In an op-ed for the Wall Street Journal, the judge tacitly acknowledges the questions being raised about his conduct and emotions. john paul stevens scotus photo portrait

washington post logoWashington Post, Retired Justice Stevens calls Kavanaugh’s hearing performance disqualifying, Robert Barnes, Oct. 5, 2018 (print edition). Retired Justice John Paul Stevens said Thursday that he no longer believes Judge Brett M. Kavanaugh should be confirmed to the Supreme Court, citing Kavanaugh’s heated performance during a Senate hearing last week.

Stevens, 98 (shown in a file photo), made the comments in Boca Raton, Fla., before a group of retirees, according to the Palm Beach Post and the journalist who interviewed Stevens at the event.

jacob hornberger headshotFuture of Freedom Foundation, The Looming Degradation of the Supreme Court, Jacob G. Hornberger, right, Oct. 5, 2018.  With Republican senators dutifully lining up to support President Trump’s nomination to the Supreme Court, it is increasingly likely that conservative lawyer and judge Brett Kavanaugh will be confirmed as an associate justice of the Supreme Court. At the same time, in its determination to “win,” the Republican Party will have brought not only shame to itself but also a degradation in prestige to the highest court of the land.

A couple of days ago, more than 500 law professors from more than 160 law schools across the nation had signed a public letter opposing Kavanaugh’s appointment. As a trial lawyer for 12 years before I joined the libertarian movement and who still is authorized to practice law in my home state of Texas, I was absolutely stunned. In all my life, I had never seen that happen. Sure, law professors have their own political philosophies and affiliations but I had never seen so many of them come together to take a public stand against a particular Supreme Court nominee, especially one who sits as a judge on the federal court of appeals.

Imagine my shock when that number increased a couple of days later to 2,400 law professors opposing the Kavanaugh nomination! The term used by the New York Times expressed my reaction: “Incomprehensible!”

That was on top of the withdrawal of support for Kavanaugh’s nomination immediately after he testified by the American Bar Association, which has 400,000 members, and the dean of the Yale Law School, where Kavanaugh got his law degree. What was phenomenal about this was that both the ABA and the Yale law school dean had previously supported Kavanaugh’s appointment.

Then, in what I believe is also an unprecedented act, a retired Supreme Court justice, John Paul Stevens, came out and declared that Kavanaugh lacks the required temperament to be a Supreme Court justice, which is what those 2,400 law professors are also saying.

Contrary to what conservative supporters of Kavanaugh have maintained, the primary issue in the Kavanaugh controversy does not revolve around the issue of whether a lawyer’s actions as a teenager should disqualify him from later serving on the Supreme Court. That, of course, is a interesting issue, but it isn’t the issue at hand. If Kavanaugh had confessed to sexually assaulting Christine Blasey Ford as a 17-year-old, expressed remorse for it, apologized, and sought forgiveness, then the Senate would be faced with that issue: Should what he did 36 years ago disqualify him from serving on the highest court in the land?

christine blasey ford high schoolInstead, there are three primary issues in this controversy: (1) Did Kavanaugh commit the sexual assault on Christine Blasey Ford (shown as a schoolgirl) and, if so, should that make a difference with respect to his appointment to the Supreme Court? (2) Did he commit perjury with his denial of having committed the offense and, equally important, with respect to other matters in his sworn testimony and, if so, should that make a difference to his appointment to the Supreme Court? and (3) Does Kavanaugh have the necessary temperament to serve as an associate justice on the Supreme Court?

As the controversy has unfolded, it has become painfully clear that perjury just isn’t important to conservatives, at least to conservatives who aren’t lawyers. Time and time again, in addressing the controversy, they ether have glossed over the possibility that Kavanaugh committed perjury or made it clear that it just doesn’t matter to them. It’s no big deal. Let’s just have a quick, 3-day, cursory, sham investigation, confirm the guy, and then “move on.”

washington post logoWashington Post, The rise and the reckoning: Inside Brett Kavanaugh’s circles of influence, Marc Fisher, Ann E. Marimow and Michael Kranish, Oct. 5, 2018 (print edition). The story of President Trump’s embattled choice for the Supreme Court is a classic Washington tale of a young man who grew up surrounded by people in high places, keenly aware of protecting his image. He told a friend in college that he didn’t plan to buy stocks as an adult because he had to avoid conflicts if he wanted to follow in his mother’s footsteps as a judge.

brett kavanaugh 1983 yearbookKavanaugh’s story is also one of the power and insularity of wealth. He grew up in an idyll of country clubs and beach retreats, private schools and public prominence. The only child of a lobbyist and a judge, he had parents who pushed him hard, teachers who assured him that he faced no limits, and friends whose families knew the art of making problems go away quietly.

That Kavanaugh (shown in a prep school yearbook photo) would achieve greatness seemed certain. Some of his classmates called him “The Genius.” They liked him because he was smart and fun. Women found him thoughtful and empathetic. Men said he was a guy’s guy — a walking encyclopedia of sports, a good pal, always up for a beer.

washington post logoWashington Post, Nobel Peace Prize awarded to two figures bringing attention to sexual violence in conflicts, Chico Harlan and Max Bearak, Oct. 5, 2018. Nadia Murad, an Iraqi Yazidi who was kidnapped and raped by Islamic State militants, has become an outspoken activist on sexual slavery and human trafficking. Denis Mukwege, a Congolese gynecologist, has treated thousands of victims of gang rape at his hospital.

More On Susan Collins Vote

george hw bush and son

ryan grim CustomThe Intercept: Analysis: Sen. Susan Collins and Brett Kavanaugh Are Both in the Bush Family Inner Circle. That Helps Explain Her Vote, Ryan Grim, right, and Akela Lacy, Oct., 5, 2018. The announcement Friday by Sen. Susan Collins, R-Maine, that she would vote to confirm Brett Kavanaugh to the Supreme Court was about family. Namely, the Bush family.

George W. Bush and his father, George H.W. Bush [shown above in a file photo] have both been welcomed into the ranks of the resistance to President Donald Trump, but their most consequential action since his election has been to help lift Kavanaugh into the Supreme Court.

susan collins oCollins, left, is an honorary member of the Bush family. She got her start in politics as a congressional aide to Rep.-turned-Sen. William Cohen. The Maine Republican was close to George H.W. Bush, who has long maintained a presence in the state. At the end of the first Bush administration, Collins was appointed New England regional director of the Small Business Administration. In 1996, she was elected to the Senate to replace her mentor, Cohen.

Kavanaugh, too, has longstanding ties to the Bush family. He served as an attorney for George W. Bush’s campaign, playing a major role in the legal battle between Bush and Al Gore. He then served as staff secretary in the Bush White House, a position of intimate influence — the staff secretary attends most Oval Office meetings and is a trusted sounding board for the president.

In the weeks after Kavanaugh was accused of sexual assault during his high school and college years, Bush personally called wavering senators, lobbying on the nominee’s behalf. Collins, who had said she would not vote to confirm a Supreme Court justice who would overturn Roe v. Wade, was one of those wavering senators. In August, HuffPost reported, citing a source close to Collins’s staff, that Collins had assured the White House that she would support Kavanaugh if he were nominated. (She has denied that.)

Collins has since said that the decision was a difficult one, though there was no hint of that agonizing in her Senate floor speech Friday, which was a full-throated defense of Kavanaugh and a prosecution of Christine Blasey Ford’s allegations.

In the end, Collins suggested that she hoped Kavanaugh’s nomination would restore the faith of Americans in the Supreme Court, easing partisan tensions and decreasing the number of 5-4 decisions the court handed down. It’s difficult to rationalize the idea that a nomination as contentious as this would usher a return to a more harmonious era of bipartisan collaboration.

Palmer Report, Opinion: The sheer insanity of what Susan Collins just did, Bill Palmer, Oct. 5, 2018. Why? It’s the only question left to ask after GOP Senator Susan Collins not only voted for screaming liar and alleged serial sex offender Brett Kavanaugh, but made a point of doing it in the most jarring and self defeating manner possible. It raises uncomfortable and scary questions about what might really be going on here.

susan collins official SmallSusan Collins has never been a party loyalist. In the past two years alone, she’s cast multiple deciding votes against the GOP on major issues, including the attempted Obamacare repeal, and the original Senate Intelligence Committee decision to investigate the Trump-Russia scandal. So no matter how many social media posts might claim that “Collins voted this way because she always votes the party line,” that’s a factually false statement. No, this has to be about something else.

If Susan Collins had decided that she needed to cast a very unpopular “yes” vote on Kavanaugh for the sake of her reelection prospects (translation: billionaire conservative donors), she could have quietly cast her vote and hoped people might forget by 2020. Instead, she took outlandish steps to make sure people never forget what she did today. There are simply not enough pro-Trump extremists in Maine to give her even a remote chance at reelection.

One of the meekest people in the Senate knowingly ended her career today with both proverbial middle fingers in the air. It was one of the ugliest things that American politics has ever seen, and it simply made no sense. Is she being blackmailed, or did she just snap today?

Time, 'Such a Slap in the Face.' Sexual Assault Survivors Who Met With Susan Collins Feel Betrayed She'll Vote for Kavanaugh, Charlotte Alter, Oct. 5, 2018. Last Thursday night, time logo ogAmanda O’Brien sat on a bus for 10 hours to get from Maine to Washington D.C. to meet with Sen. Susan Collins and share her opposition to Supreme Court nominee Brett Kavanaugh. The bus was full of sexual assault survivors, who shared their stories with their seat mates as they crawled toward the Capitol.

O’Brien, who wore black like the rest of the survivors, tried to prepare herself. When she and a handful of other survivors got to the Senator’s office on Friday, she told Senator Collins that she had been sexually assaulted for years as a young child. She told her because of the impact of the assault, she later became the victim of domestic violence. She told her Senator things she has rarely told anyone, things she would still rather not repeat.

But on Friday afternoon, Collins announced her intention to confirm Judge Brett Kavanaugh, all but ensuring that Trump’s pick will sit on the Supreme Court, despite Christine Blasey Ford’s testimony that he pinned her to a bed and tried to rape her when they were both in high school. Kavanaugh denies Ford’s allegation.

Oct. 4

ny times logoNew York Times, White House Sends F.B.I. Interviews on Kavanaugh to Senate, Peter Baker, Nicholas Fandos, Sheryl Gay Stolberg and Michael S. Schmidt, Oct. 4, 2018 (print edition). The White House sent summaries of the interviews, expressing confidence that they would not stop Judge Brett M. Kavanaugh’s confirmation. The material was conveyed in the middle of the night, just hours after Senate Republicans set the stage for a pair of votes later in the week.

Senior White House officials, after reviewing summaries of interviews conducted by the F.B.I., are increasingly confident that the information collected would ease the path for senators to confirm Judge Brett M. Kavanaugh to the Supreme Court, a person briefed on the findings said Thursday morning.

The material was conveyed to Capitol Hill in the middle of the night, just hours after Senate Republicans set the stage for a pair of votes later in the week to move to approve Judge Kavanaugh’s confirmation. A statement issued by the White House around 2:30 a.m. said the F.B.I. had completed its work and that it represented an unprecedented look at a nominee.

Roll Call, Amy Schumer, Emily Ratajkowski Among Hundreds Arrested Protesting Kavanaugh, Griffin Connolly, Oct 4, 2018. Demonstrators flocked to Hart Senate Office Building after USCP cordons off East Front. The U.S. Capitol Police arrested hundreds of people protesting Supreme Court nominee Brett Kavanaugh’s pending confirmation in the atrium of the Hart Senate Office Building on Thursday.

Protesters initially planned to hold their rally on the East Front of the Capitol, but USCP cordoned off the area Thursday morning. So the thousands of demonstrators streamed into the Hart building, chanting and singing against Kavanaugh, whom multiple women have accused of sexual assault.

Roll Call, Heidi Heitkamp Will Vote No on Kavanaugh Nomination, Niels Lesniewski, Oct. 4, 2018. North Dakota Democrat is in a tight re-election campaign. Sen. Heidi Heitkamp, the Democrat leading Roll Call’s list of most vulnerable senators on the ballot this fall, announced Thursday that she’ll vote against confirming Judge Brett Kavanaugh to the heidi heitkamp oSupreme Court. “The process has been bad, but at the end of the day you have to make a decision, and I’ve made that decision,” the North Dakota Democrat told WDAY, the ABC affiliate in Fargo, N.D. “I will be voting no on Judge Kavanaugh.”

Heitkamp explained her decision to opposed Kavanaugh in light of her decision last year to support President Donald Trump's first nominee to the high court, Neil neil gorsuch headshotGorsuch, left.

“I voted for Justice Gorsuch because I felt his legal ability and temperament qualified him to serve on the Supreme Court. Judge Kavanaugh is different. When considering a lifetime appointment to Supreme Court, we must evaluate the totality of the circumstances and record before us. In addition to the concerns about his past conduct, last Thursday’s hearing called into question Judge Kavanaugh’s current temperament, honesty, and impartiality. These are critical traits for any nominee to serve on the highest court in our country,” she said.

Heitkamp’s decision to oppose President Donald Trump’s nominee to the Supreme Court means that Sen. Joe Manchin III of West Virginia is the only member of the Democratic caucus potentially favoring the confirmation of Kavanaugh.

ny times logoNew York Times, Analysis: Trump and G.O.P. Lash Out at Kavanaugh’s Accuser. But at What Risk? Peter Baker, Oct. 4, 2018 (print edition). For more than two weeks he held back. Against all his instincts, President Trump for the most part resisted directly attacking the woman whose sexual assault allegation has jeopardized his Supreme Court nomination. The accuser was to be treated with kid gloves, like “a Fabergé egg,” as one adviser put it.

But Mr. Trump could resist only so long and told aides it was time to turn up the heat. So when he revved up a political rally this week by mocking Christine Blasey Ford, he indulged his desire to fight back and galvanized his conservative base even at the risk of alienating the very moderate Republicans he needs to confirm Judge Brett M. Kavanaugh to the Supreme Court.

ny times logoNew York Times, Opinion: The Senate Should Not Confirm Kavanaugh. Signed, 1,000+ Law Professors (and Counting). Oct. 4, 2018. We have differing views about Kavanaugh’s qualifications. But we are united in believing he does not have the right judicial temperament.

The following letter will be presented to the United States Senate on Oct. 4. It will be updated as more signatures are received. Judicial temperament is one of the most important qualities of a judge. As the Congressional Research Service explains, a judge requires “a personality that is even-handed, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.”

washington post logoWashington Post, Celebrating kegs and insulting girls: Inside Mark Judge’s 1980s Georgetown Prep underground paper, Ian Shapira, Oct. 4, 2018. The Unknown Hoya, co-founded by Judge, featured heavy drinking, a stripper-fueled bachelor party and slurs about Holton-Arms girls.

Oct. 3

Palmer Report, Opinion: Trump and McConnell sink to desperate new lengths to protect Brett Kavanaugh, Bill Palmer, Oct. 3, 2018. Just how dirty is Brett Kavanaugh? All you have to do is take a look at the desperate lengths Donald Trump and Mitch McConnell are going to in the name of not only protecting Kavanaugh from the FBI investigation, but keeping the final FBI report hush-hush.

christine blasey ford sept 27 2018Dianne Feinstein has confirmed that, as expected, the FBI will not be allowed to interview Dr. Christine Blasey Ford (right) – but that’s just the half of it.

It’s fairly clear why the FBI isn’t allowed to interview Ford. It’s not to prevent her from telling her story, which she’s already done before the Senate; the FBI has full access to her congressional testimony. Instead, by blocking the FBI from speaking with Ford, Trump and McConnell are also blocking the FBI from speaking with Kavanaugh – which is the entire point. Kavanaugh has already revealed himself to be a pathological liar, and if he lies to the FBI, he’ll go to prison. But the real panic move here is with the report itself.

USA Today and others are now reporting that there will only be one copy of the FBI report on Brett Kavanaugh, and that Senators will each have to take turns reading it. Senate Democrats will still be able to quickly leak the ugliest parts of the report to the public. But the goal here is, obviously, to prevent the public from seeing the full text.

This confirms that, even with the limitations placed on the FBI investigation by Trump and McConnell, they still expect that the FBI report will paint Brett Kavanaugh in a terrible light. This means that Trump and McConnell are playing with an even weaker hand here than we thought.

ny times logoFBI logoNew York Times, F.B.I. to Complete Inquiry Wednesday With Vote Coming This Week, Oct. 3, 2018 (print edition). The F.B.I. will send the results of its inquiry into Judge Kavanaugh to the Senate on Wednesday, with a vote scheduled on the nomination this week.

ny times logoNew York Times, Trump Taunts Christine Blasey Ford at Rally, At an event in Mississippi, Maggie Haberman and Peter Baker, Oct. 3, 2018 ([rint edition). President Trump mocked the woman who accused Judge Brett M. Kavanaugh of sexual assault. He imitated her, exaggerating her responses at last week’s hearing. The crowd cheered.

washington post logojeff flake oWashington Post, ‘Just plain wrong’: Flake, Collins criticize Trump’s attack on Ford, John Wagner and Seung Min Kim​, Oct. 3, 2018. Republican Sens. Jeff Flake (Ariz.), right and Susan Collins (Maine) are considered crucial to the confirmation prospects of Judge Brett M. Kavanaugh.

washington post logoWashington Post, Breaking: Senate Democrats suggest past FBI background checks on Kavanaugh include evidence of inappropriate behavior, John Wagner and Seung Min Kim, Oct. 3, 2018. Senate Democrats suggested in a letter to the Senate Judiciary Committee chairman on Wednesday that past FBI background checks on Supreme Court nominee Brett M. Kavanaugh include evidence of inappropriate behavior, contrary to Republican claims.

In the letter, eight of the 10 Democrats on the Judiciary panel challenged the accuracy of a tweet from the majority Republicans on Tuesday that said: “Nowhere in any of these six FBI reports, which the committee has reviewed on a bipartisan basis, was there ever a whiff of ANY issue — at all — related in any way to inappropriate sexual behavior or alcohol abuse.”

The Democrats said the information in the tweet is “not accurate,” and urged the GOP to correct them. Aides to the committee chairman, Sen. Charles E. Grassley (R-Iowa), did not return an immediate request for comment.

washington post logojennifer rubin new headshotWashington Post, Opinion: Senators, if you think you are ‘appalled’ now, just wait, Jennifer Rubin, right, Oct. 3, 2018. Appearing on the “Today” show, Sen. Jeff Flake (R-Ariz.) reacted to President Trump’s mocking of Christine Blasey Ford at a political rally Tuesday night. “There’s no time and no place for remarks like that. But to discuss something this sensitive at a political rally is just not right … It’s kind of appalling.”

susan collins oThis echoes the reaction of Sen. Susan Collins (R-Maine) when Trump first attacked Ford by tweet, saying if the attack was “that bad,” the teen Ford would have gone to the police. Collins, left, said: “I was appalled by the president’s tweet.”

There is plenty to appall:

Judge Brett M. Kavanaugh’s baseless allegation that he was the victim of a smear stemming from Hillary Clinton’s 2016 loss; Kavanaugh’s obnoxious retorts to Democratic senators, including Sen. Amy Klobuchar (Minn.); Sen. Lindsey Graham (R-S.C.) calling for Klobuchar to apologize; Republicans’ objections to any investigation of Ford’s claims; Republicans’ repeated, false assertion that there is no corroboration for Ford’s accusation (ignoring her polygraph, her prior remarks, Kavanaugh’s calendar entry for July 1); Republicans’ decision to hide behind a female “assistant” (as Senate Majority Leader Mitch McConnell referred to prosecutor Rachel Mitchell) and then discard her in favor of hysterical rants; apparent efforts to curtail the FBI investigation; Ed Whelan’s defamatory accusation aimed at a classmate of Kavanaugh’s; and Kavanaugh’s seeming mischaracterization of his drinking habits and high school references to sex and drinking.

Oct. 2

washington post logoWashington Post, FBI gets longer leash on Kavanaugh probe as McConnell signals vote is imminent, Devlin Barrett, Josh Dawsey, Seung Min Kim and Matt Zapotosky, Oct. 2, 2018 (print edition). The inquiry will include sexual misconduct allegations from a third woman against Brett M. Kavanaugh. But the FBI won’t conduct an unfettered review of his youthful drinking.

FBI logony times logoNew York Times, The People the F.B.I. Has Interviewed in the Kavanaugh Investigation (and Those It Hasn’t), Karen Yourish and Troy Griggs, Oct. 2, 2018 (print edition). Republicans offered the bureau four witnesses; Democrats have called for more than a dozen additional people to be interviewed.

People who were on the Republicans’ list and have been interviewed:

-- Deborah Ramirez, Yale classmate, The second woman to accuse Judge Kavanaugh of engaging in sexual misconduct; she said he exposed himself to her at a dorm room party.

-- Mark Judge, Judge Kavanaugh’s Georgetown Prep classmate, Named by Dr. Blasey and a third accuser as being a key witness to the alleged sexual misconduct by Judge Kavanaugh. “I never saw Brett act in the manner Dr. Ford describes,” he said.

-- P.J. Smyth, Georgetown Prep classmate; Dr. Blasey said he was at the house party, “I have no knowledge of the party in question; nor do I have any knowledge of the allegations of improper conduct.”

-- Leland Keyser, Dr. Blasey’s high school friend, Said she does not remember being at the party during the summer of 1982 but believes Dr. Blasey.

washington post logoWashington Post, ‘The trauma for a man’: Male fury and fear rises in GOP in defense of Kavanaugh, Philip Rucker and Robert Costa, Oct. 2, 2018 (print edition). Trump slams Democrats for 'trying to destroy' Kavanaugh (shown below in a file photo of his testimony).

brett kavanaugh screen grab 9 5 2018 at 3 56 pmThe sexual assault allegations against Supreme Court nominee Brett M. Kavanaugh have sparked a wave of unbridled anger and anxiety from many Republican men, who say they are in danger of being swept up by false accusers who are biased against them.

From President Trump to his namesake son to Sen. Lindsey O. Graham (R-S.C.), the howls of outrage crystallize a strong current of grievance within a party whose leadership is almost entirely white and overwhelmingly male — and which does not make a secret of its fear that demographic shifts and cultural convulsions could jeopardize its grip on power.

This eruption of male resentment now seems likely to play a defining role in the midterm elections just five weeks away, contrasting with a burst of enthusiasm among women propelling Democratic campaigns and inspired by the national #MeToo reckoning over sexual assault and gender roles.

Oct. 2

Oct. 2

Justice Integrity Project, Pomp, Piety, MIAs Mark Annual DC Red Mass On Justice

By Andrew Kreig

Prominent members of the scandal-stricken Roman Catholic legal leadership in the District of Columbia convened on Sunday for the annual Red Mass that provides a spiritual kick-off to the new Supreme Court term and the legal community's public aspirations for justice.

The ceremony was majestic as usual but unfolded before a slightly smaller audience than normal and under the shadow of unfolding scandal involving the local Catholic-reared Supreme Court nominee Brett Kavanaugh.

cardinal donald wuerl portrait fullCardinal Donald Wuerl, left, was absent from the mass, which he has normally led for most of his 12-year tenure in Washington. Instead, he has recently been awaiting possible sanction from the Vatican for his alleged role in covering-up sexual offenses by priests in Pittsburgh, one of the cardinal's previous postings.

As usual, Supreme Court Chief Justice John Roberts led a delegation from the court to the ceremonies at the historic Cathedral of St. Matthew the Apostle and a subsequent brunch.

But Roberts was accompanied by only two of the associate judges, Republican Catholic Clarence Thomas and Stephen Breyer, a Democrat of the Jewish faith.

This editor has attended the Red Mass and brunch a number of times previously and so is in position to comment on its history, inspiring ceremonial and spiritual aspects, as well as some of the embarrassing but largely unspoken undercurrents.

red mass 2018 straight cover MediumThe event first launched in 1928 at the St. Andrews Church in New York City, in 1953 at St. Matthews in the District of Columbia and in a number of other metro areas around the United States.

The event in the nation's capital has attracted the U.S. presidential attendance and more commonly during recent years a majority of the Supreme Court Justices, sometimes including multiple non-Catholics.

The Court in recent years has included six justices reared as Roman Catholics and three Jewish members. Kavanaugh, schooled at the Jesuit school Georgetown Prep, would be another Catholic if confirmed.

But his status is in peril following numerous claims of sexual assault and lying under oath that are surfacing. Kavanaugh has denied wrongdoing (as we and others have reported extensively elswhere, including here) and was not reported as present at the mass on Sunday.

Publically, the mass unfolded as a spiritual and civic occasion framed by the magnificant cathedral and stirring Biblical readings, sacred music and other religious trappings.

washington post logoWashington Post, FBI gets longer leash on Kavanaugh probe as McConnell signals vote is imminent, Devlin Barrett, Josh Dawsey, Seung Min Kim and Matt Zapotosky, Oct. 2, 2018 (print edition). The inquiry will include sexual misconduct allegations from a third woman against Brett M. Kavanaugh. But the FBI won’t conduct an unfettered review of his youthful drinking.

Oct. 1

supreme court building

SCOTUSblog, Justices officially return from summer recess, issue orders from long conference, Amy Howe, Oct. 1, 2018 (Visit SCOTUSblog for full coverage with links). The eight justices of the Supreme Court returned to the bench today to hear oral arguments in the first cases of their new term. But before they did so, they issued an extensive (75 pages) list of orders from last Monday’s “long conference” – their first conference since their summer recess began in late June.

The justices issued grants from the conference last Thursday. Today’s orders consisted primarily of denials of review and requests for the U.S. solicitor general to weigh in on several cases.

The justices apparently did not act on two of the highest-profile cases on the list for last week’s conference, which involve a challenge to a Latin cross, located on public land in the Washington, D.C. suburbs, commemorating soldiers who died in World War I. The U.S. Court of Appeals for the 4th Circuit ruled that the cross violates the Constitution’s establishment clause; the justices have been asked to review that ruling.

U.S. Supreme Court Battle

washington post logoFBI logoWashington Post, Confusion over limits of FBI inquiry sparks new round of combat over Kavanaugh, Mike DeBonis and Josh Dawsey, Oct. 1, 2018 (print edition). The investigation into sexual assault allegations against Supreme Court nominee Brett M. Kavanaugh will focus on two accusers, but the White House says it opposes a “fishing expedition” that could take a broader look at his credibility and behavior.

Palmer Report, Senate transcript reveals Brett Kavanaugh allegedly raped a woman in the back of a car, Bill Palmer, right, Oct. 1, 2018. With the FBI having finally received bill palmerthe green light a few hours ago to conduct an unrestricted investigation into the sexual assault allegations against Brett Kavanaugh, we’re now learning that he’s been accused brett kavanaugh 1983 yearbookof having raped a woman in the back of a car.

The Senate Judiciary Committee took this accusation seriously enough that it questioned Kavanaugh (shown at left in a prep school yearbook photo) about it during private hearings – and the transcript just surfaced publicly.

The woman in question, whose identity is not known, sent a letter to Senator Kamala Harris, spelling out her accusations. The Senate Judiciary Committee read the letter to Brett Kavanaugh, asking him to respond to it. Here’s the key passage from the woman’s letter. Fair warning, this is sexually explicit and disturbing:

Kavanaugh and a friend offered me a ride home. I don’t know the other boy’s name. I was in his car to go home. His friend was behind me in the backseat. Kavanaugh kissed me forcefully. I told him I only wanted a ride home. Kavanaugh continued to grope me over my clothes, forcing his kisses on me and putting his hand under my sweater. ‘No,’ I yelled at him.

The boy in the backseat reached around, putting his hand over my mouth and holding my arm to keep me in the car. I screamed into his hand. Kavanaugh continued his forcing himself on me. He pulled up my sweater and bra exposing my breasts, and reached into my panties, inserting his fingers into my vagina. My screams were silenced by the boy in the backseat covering my mouth and groping me as well.

Kavanaugh slapped me and told me to be quiet and forced me to perform oral sex on him. He climaxed in my mouth. They forced me to go into the backseat and took turns raping me several times each. They dropped me off two blocks from my home. ‘No one will believe if you tell. Be a good girl,’ he told me.

Brett Kavanaugh’s response, according to the transcript: “Nothing — the whole thing is ridiculous. Nothing ever — anything like that, nothing. I mean, that’s — the whole thing is just a crock, farce, wrong, didn’t happen, not anything close.”

This interview took place six days ago, and the transcript was just released today. You can read the entire exchange starting on page thirteen.

U.S. Senate Judiciary Committee, Transcript of staff interview with Judge Brett Kavanaugh on allegations of sexual misconduct, Alderson Court Reporting, released on Oct. 1, 2018, dated Sept. 26, 2018 (19 pages with four-page index). 

Roll Call, Mitch McConnell: Brett Kavanaugh Floor Vote This Week, Lex Samuels, Oct 1, 2018.  Majority leader again decries Democrats for delay and obstruction. Senate Majority Leader Mitch McConnell is insisting the vote on confirmation of Brett Kavanaugh to the Supreme Court will take place before week’s end.

mitch mcconnell2The Kentucky Republican, speaking on the Senate floor Monday afternoon, said the Democrats chose to hold the allegations against Kavanaugh “in reserve” in order to derail the nomination.

He spoke about how the Democrats who first received the allegations handled them. He specifically mentioned a law firm with “politically connected lawyers” that McConnell says Democrats advised Kavanaugh’s accuser to hire. Those lawyers are set to hold a fundraiser for Democrats this week, McConnell said.

McConnell continued by expressing doubt that Democrats would be happy with the one-week investigation and that he expects “soon enough the goal-posts will be on the move once again.”

He compared the Democrat’s handling of the allegations to McCarthyism saying, “that they just want to delay this matter past the election.”

Wayne Madsen Report (WMR), Elite colleges and a culture of rape, Wayne Madsen, Oct. 1, 2018 (Subscription required; excerpted with permission). The sexual assault allegations brought against Donald Trump's Supreme Court nominee, Brett Kavanaugh, opens a window into the world of elite schools that do not bear the words "State," "A&M," "Community," or "Prep" in their names. This is a world of privilege, where money and family legacy matter the most.

Kavanaugh testified about his admittance to Yale, "I have no connections there," he told the Senate Judiciary Committee, adding, "I got there by busting my tail." Not exactly. The john kelly 1Yale undergraduate yearbook from 1928 shows that Everett Edward Kavanaugh, Judge Kavanaugh's grandfather, was a Yale graduate.

And sexual assaults of underage girls, like Christine Blasey Ford, were not some "fad" of the 1980s. Our colleague, John Kelly, left, a veteran of NBC News, where he worked with Chet Huntley and David Brinkley, and CBS News, where he reported on Watergate for Walter Cronkite, brought to our attention his New York Post reports from 1960.

Future of Freedom Foundation, Opinion: Trump’s Sham FBI “Investigation” of Kavanaugh, Jacob G. Hornberger, right, Oct. 1, 2018. On the eve of the Senate Judiciary Committee’s vote on whether to send President Trump’s nomination of Brett Kavanaugh to the full Senate for a vote on confirmation, Republican senators agreed to do so on the condition that the FBI conduct a further background investigation of Kavanaugh.

jacob hornberger headshotWhat’s wrong with Trump’s severe limitation on the FBI’s further background investigation of Brett Kavanaugh? It doesn’t permit the FBI to investigate the possibility that Kavanaugh has committed a brand new offense — the offense of perjury, which is a federal felony offense.

Kavanaugh supporters emphasize that he has been the subject of several FBI background checks already. They miss two critically important points:

One, those background checks were conducted before the FBI had any information regarding the sex assault that Ford has accused him of. Two, those background checks were conducted before Kavanaugh’s testimony last Thursday. Why is that important? Because there is the possibility that Kavanaugh committed perjury during his testimony at that hearing.

For some laymen (i.e., non-lawyers) perjury might seem like no big deal and certainly not enough to keep a lawyer or a judge from becoming a Supreme Court justice. As I explain in my article, “Summon Mark Judge to Testify in Kavanaugh Hearing,” to every member of the legal profession perjury is an extremely grave offense, especially for a lawyer or a judge, and a clear justification for disqualifying any lawyer or judge who has committed perjury from serving on the U.S. Supreme Court.

In fact, as I state in my article, in my opinion that is precisely the reason why the American Bar Association, which has 400,000 members, and the dean of the Yale Law School, where Kavanaugh got his law degree, immediately withdrew their support for his nomination after Ford and Kavanaugh testified until an additional background investigation was conducted.

oenearthlogoOpEdNews, Opinion: Sex, Lies, and Hypocrisy: Kavanaugh's Glass House, Carl Petersen, Oct. 1, 2018. Much like Dr. Christine Ford, Monica Lewinsky's life was turned upside down by the glare of someone else's spotlight.

While Brett Kavanaugh asserted that engaging in sexual relations with Bill Clinton turned "her life into a shambles," from Lewinsky's point of view it was his boss, Kenneth Starr, "who turned [her] 24-year-old life into a living hell."

Looking back on the 1990s with the experience of the #MeToo era, there are questions that should have been asked about the most powerful man in the world having sexual relations with an employee.

monica lewinsky may 1967Lewinsky, left, has always maintained that the relationship was consensual, but "power imbalances -- and the ability to abuse them -- do exist even when the sex has been consensual." As a society, have we established where the lines are?

Unfortunately, Kavanaugh (shown below right during his snarling Senate confirmation testimony Thursday)did not seem interested in this line of questioning. Instead, he was infatuated with the most unimportant part of the story - the details of the sex acts.

brett kavanaugh nbc cropped sept 27 2018Given this history, one has to wonder what Lindsey Graham was thinking as he bloviated that if Kavanaugh was looking "for a fair process, [then] he came to the wrong town at the wrong time." When does he think that this poisoned, political atmosphere began?

bill clinton wIf the nominee thinks that the "confirmation process has become a national disgrace," how does he feel today about what he put Lewinsky through and what it did to her and her family? If "the idea of going easy on [Clinton, left] at the questioning [was] abhorrent to [him]," his current outrage should be directed at the Republican majority in the Senate.

By not investigating all of the accusations, they are the ones who are avoiding the responsibility of providing informed consent to his lifetime nomination to the highest court in the land.

Of course, this ignores the important distinction between Kavanaugh's apparent obsession with Clinton's sex life and the charges that may derail his assertion to the Supreme Court; if Dr. Christine Blasey Ford is telling the truth, then Kavanaugh acted without consent. This alleged attempted rape represents "callous and disgusting behavior that has somehow gotten lost in the shuffle."

washington post logoWashington Post, In memo, outside prosecutor argues why she would not bring criminal charges against Kavanaugh, Seung Min Kim, Oct. 1, 2018 (print edition). The outside prosecutor Senate Republicans hired to lead the questioning in last week’s hearing about the sexual assault allegations against Brett M. Kavanaugh is arguing in a new memo why she would not bring criminal charges against the Supreme Court nominee.

rachel mitchell 2011 screenshotIn the five-page memo, obtained by the Washington Post, Rachel Mitchell (shown in a file photo) outlines more than half a dozen reasons why she thinks the testimony of Christine Blasey Ford — who has accused Kavanaugh of assaulting her at a house in suburban Maryland when they were teenagers in the early 1980s — has some key inconsistencies.

“A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that,” Mitchell writes in the memo, sent Sunday night to all Senate Republicans. “Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them.”

Mitchell continued: “For the reasons discussed below, I do not think that a reasonable prosecutor would bring this case based on the evidence before the [Senate Judiciary] Committee. Nor do I believe that this evidence is sufficient to satisfy the preponderance-of-the-evidence standard.”

The memo is likely to prompt significant pushback from Democratic senators, who have argued that Ford is not on trial and that Kavanaugh is merely interviewing for a job. But the memo is clearly aimed at assuaging the concerns of a handful of GOP senators who are on the fence about whether to vote to confirm Kavanaugh and are considering whose story — Ford’s or Kavanaugh’s — to believe. The FBI is now investigating Ford’s accusations, as well as those of a second woman, Deborah Ramirez.


chuck grassley screams at patrick leahy confidential records screenshot

Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) screams at his longtime Democratic colleague Pat Leahy of Vermont during the Kavanaugh hearing, in which Leahy and other Democrats have accused the nominee of perjuring himself by denying use of stolen Democratic Senate documents (screenshot).

Sept. 30

bill palmerPalmer Report, Analysis: Jeff Flake just said something on 60 Minutes that’s really bad news for Brett Kavanaugh, Bill Palmer, right, Sept. 30, 2018. The FBI investigation into Brett Kavanaugh only exists thanks to GOP Senator Jeff Flake and the heroes who pushed him into calling for it. Flake warned everyone up front that he’s still planning to support Kavanaugh in the full Senate vote unless the FBI probe turns up something disqualifying.

jeff flake oNow he’s defining the parameters of what would be disqualifying – and it’s really bad news for Kavanaugh.

Jeff Flake, left, made a point of putting himself in front of the cameras tonight when he appeared on 60 Minutes with his friend, Democratic Senator Chris Coons.

During the interview, Flake was asked this question: “If Judge Kavanaugh is shown to have lied to the Committee, nomination’s over?” Flake could have tried to hedge his bets or be vague about it, in the hope of giving himself wiggle room. Instead his answer consisted of only two words: “Oh yes.”

ny times logoNew York Times, Details of F.B.I.’s Kavanaugh Inquiry Show Its Restricted Range, Michael D. Shear, Sheryl Gay Stolberg, Maggie Haberman and Michael S. Schmidt, Sept. 30, 2018 (print edition). The F.B.I. will interview four witnesses about sexual assault claims against Judge Brett M. Kavanaugh as part of a background check, not a full-fledged criminal investigation. The White House will decide the breadth of the inquiry and can order further investigation based on the findings from the four interviews.

The Atlantic, Opinion: This Was Never About Finding Out the Truth, Matt Thompson, Sept. 30, 2018. Brett Kavanaugh’s testimony before the Senate was a lesson in power — who wields it, and at whose expense.

SCOTUSBlog, This week at the court, Andrew Hamm, Sept. 30, 2018. The October 2018 term begins on Monday. We expect additional orders from the September 24 conference at 9:30 a.m. The justices will hear oral argument in Weyerhaeuser Company v. U.S. Fish and Wildlife Service and Mount Lemmon Fire District v. Guido.

washington post logoWashington Post, Kellyanne Conway: ‘I’m a victim of sexual assault,’ Alex Horton​, During an appearance on CNN, Sept. 30, 2018. The White House adviser suggested conservatives have become targets for political score settling.

Sept. 29

ny times logoNew York Times, Opinion: Thank You, Jeff Flake. Maybe America Can Now Learn the Truth. Editorial Board, Sept. 29, 2018 (print edition). An attack of conscience by one Republican senator, jeff flake oJeff Flake of Arizona (shown at right), quickly reinforced by some wavering colleagues, compelled the Senate leadership and the White House to accede to common sense by commissioning an F.B.I. inquiry into the allegations of sexual assault against Brett Kavanaugh, President Trump’s Supreme Court nominee.

washington post logoWashington Post, FBI reaches out to 2nd woman who has accused Kavanaugh of sexual misconduct, Shane Harris, Matt Zapotosky, Tom Hamburger and Seung Min Kim​, Sept. 29, 2018. The FBI has begun contacting people as part of an additional background investigation of Judge Brett M. Kavanaugh, including a second woman who alleges that the Supreme Court nominee sexually assaulted her, according to people familiar with the unfolding investigation.

deborah ramirez benjamin rasmussen new yorkerThe bureau has reached out to Deborah Ramirez, a Yale University classmate of Kavanaugh’s who alleges that he shoved his genitals in her face at a party where she had been drinking and become disoriented. It was not clear that agents had yet interviewed Ramirez (shown at right in a photo by Benjamin Rasmusseen The New Yorker).

But the FBI is moving quickly to contact people as part of the new background investigation, which President Trump ordered on Friday under pressure from key members of his party.

bill palmerPalmer Report, Analysis: Donald Trump begins backing down after he’s caught trying to rig FBI investigation into Brett Kavanaugh, Bill Palmer, right, Sept. 29, 2018. Earlier this evening, multiple major news outlets reported that Donald Trump had been caught trying to secretly place severe and absurd restrictions on the FBI investigation into Supreme Court nominee Brett Kavanaugh, including forbidding the FBI from investigating the claims made by Julie Swetnick. Trump could only have gotten away with this if no one found out until it was too late to matter. Now that he’s been caught, predictably, he’s already begun backing down.

After the news broke, Trump’s Deputy Press Secretary Raj Shah released a statement insisting that the FBI was free to investigate any and all aspects of the sexual assault allegations against Kavanaugh. Because Trump and his White House have publicly staked themselves to this, Trump is not going to be able to keep the investigation limited.

In fact, because one of Trump’s official spokespeople just publicly told the FBI that it’s free to interview Swetnick, for all we know, the FBI may have taken this as an excuse to call Swetnick right now.

nbc news logoNBC News, White House limits scope of the FBI's investigation into the allegations against Brett Kavanaugh, Ken Dilanian, Geoff Bennett, Kristen Welker, Frank Thorp V, Hallie Jackson and Leigh Ann Caldwell, Sept. 29, 2018. The FBI has not been permitted to investigate the claims of Julie Swetnick, a White House official confirmed to NBC News. The White House is limiting the scope of the FBI’s investigation into the sexual misconduct allegations against Supreme Court nominee Brett Kavanaugh, multiple people briefed on the matter told NBC News.

While the FBI will examine the allegations of Christine Blasey Ford and Deborah Ramirez, the bureau has not been permitted to investigate the claims of Julie Swetnick, who has accused Kavanaugh of engaging in sexual misconduct at parties while he was a student at Georgetown Preparatory School in the 1980s, those people familiar with the investigation told NBC News. A White House official confirmed that Swetnick's claims will not be pursued as part of the reopened background investigation into Kavanaugh.

julie swetnickFord said in Senate testimony Thursday that she was "100 percent" certain that Kavanaugh sexually assaulted her when they were both in high school. Ramirez alleged that he exposed himself to her when there were students at Yale. Kavanaugh has staunchly denied allegations from Ford, Ramirez and Swetnick, right.

Instead of investigating Swetnick's claims, the White House counsel’s office has given the FBI a list of witnesses they are permitted to interview, according to several people who discussed the parameters on the condition of anonymity. They characterized the White House instructions as a significant constraint on the FBI investigation and caution that such a limited scope, while not unusual in normal circumstances, may make it difficult to pursue additional leads in a case in which a Supreme Court nominee has been accused of sexual assault.

President Donald Trump said on Saturday that the FBI has "free reign" in the investigation. "They’re going to do whatever they have to do," he said. "Whatever it is they do, they’ll be doing — things that we never even thought of. And hopefully at the conclusion everything will be fine."

Breaking News: Trump orders limits on FBI probe of Kavanaugh. Accuser Julie Swetnick's attorney responds:

"If true, this is outrageous," wrote Avenatti. "Why are Trump and his cronies in the Senate trying to prevent the American people from learning the truth? Why do they insist on muzzling women with information submitted under penalty of perjury? Why Ramirez but not my client?"

bill palmerPalmer Report, Analysis: FBI is already ripping into Brett Kavanaugh’s life tonight, Bill Palmer, right, Sept. 29, 2018. How much can the FBI accomplish in the week it’s been given to investigate the accusations against Supreme Court nominee Brett Kavanaugh? Let’s just say that the bureau is hitting the ground running, with a vengeance. Not only is the FBI investigating multiple sexual assault accusations, it’s been seeking to conduct key interviews as soon as tonight.

This is important for two reasons. First, it confirms what Mitch McConnell’s office stated earlier this evening, which is that the FBI has been given the authority to investigate all the accusations, and not just those made by Dr. Christine Blasey Ford.

Second, it demonstrates just how quickly the FBI is working on this. The sooner it can interview Kavanaugh’s various accusers, the sooner it can use their responses to zero in on which other potential witnesses and physical evidence to pursue. The FBI already has a leg-up even before these interviews, because Ford just finished giving detailed public testimony, while Ramirez and Swetnick have also gone public in detail.

All of this can be – and surely already is being – used to help guide the investigation even before the accuser interviews can be conducted.

washington post logoWashington Post, Partisan politics, Kavanaugh’s defiant words put Supreme Court in unwelcome spotlight, Robert Barnes and Carol D. Leonnig​, Sept. 29, 2018. The Senate’s partisan warfare over Judge Brett M. Kavanaugh’s nomination and Kavanaugh’s own denunciations of his political enemies have drawn scrutiny.

The political underpinnings of the court — conservative justices nominated by Republican presidents, liberal ones named by Democrats — are never far from the surface. But justices on both sides strive to stress that ideological rather than partisan concerns account for their disagreements.

washington post logoWashington Post, Opinion: Kavanaugh is lying. His upbringing explains why, The elite learn early that they’re special — and that they won’t face consequences, Shamus Khan, Sept. 29, 2018.  Shamus Khan, the chair of the sociology department at Columbia University, is the author of “Privilege: The Making of an Adolescent Elite at St. Paul’s School.”

Brett Kavanaugh is not telling the whole truth. When President George W. Bush nominated him to the U.S. Court of Appeals for the District of Columbia Circuit in 2006, he told senators that he’d had nothing to do with the war on terror’s detention policies; that was not true. Kavanaugh also claimed under oath, that year and again this month, that he didn’t know that Democratic Party memos a GOP staffer showed him in 2003 were illegally obtained; his emails from that period reveal that these statements were probably false.

How could a man who appears to value honor and the integrity of the legal system explain this apparent mendacity? How could a man brought up in some of our nation’s most storied institutions — Georgetown Prep, Yale College, Yale Law School — dissemble with such ease? The answer lies in the privilege such institutions instill in their members, a privilege that suggests the rules that govern American society are for the common man, not the exceptional one.

washington post logoWashington Post, New Kavanaugh inquiry draws FBI into partisan tug of war, Matt Zapotosky, Sept. 29, 2018 (print edition). The FBI has grown accustomed to its work being viewed through sharply partisan lenses. But President Trump’s order for a “supplemental investigation” of Supreme Court nominee Brett M. Kavanaugh presents challenges.

washington post logoWashington Post, Details in Kavanaugh’s 1982 calendar entry could be scrutinized in FBI probe, Michael Kranish, Joe Heim and Emma Brown, Sept. 29, 2018 (print edition).  Democrats have seized on the scrawled notes as possible evidence that could support Christine Blasey Ford’s charge that the Supreme Court nominee sexually assaulted her.


Sept. 29, 2018

Justice Integrity Project, Senators Reach Deal For Kavanaugh Sex Claim Probe

By Andrew Kreig, Sept. 29, 2018. 

The Senate Judiciary Committee approved Brett Kavanaugh's nomination to the U.S. Supreme Court by a party line 11-10 vote on Sept. 28 but agreed also to let a key member jeff flake onegotiate for up to a week's delay for an FBI investigation before the nomination goes to the full Senate.

In a dramatic reversal Friday, Republican Senator Jeff Flake of Arizona, right, announced that he sought an FBI probe of sexual misconduct investigations before a vote by the full Senate, where Republicans hold a 51-49 majority.

Two other undecided senators, Republican Lisa Murkowski of Alaska and Democrat Joe Manchin of West Virginia, announced that they would join Flake's position. That would put Kavanaugh's final approval in doubt if other senators vote as expected nearly along party lines.


washington post logobrett kavanaugh flagWashington Post, American Bar Association had concerns in 2006 about Kavanaugh, Avi Selk, Sept. 29, 2018 (print edition). The ABA flagged concerns of possible bias just before the Senate made Brett M. Kavanaugh a federal judge.

washington post logoWashington Post, An elevator confrontation, a meeting in a phone booth: Sen. Flake’s Friday drama, Elise Viebeck, Sean Sullivan and Paul Kane, The deal to delay a vote on President Trump’s Supreme Court nominee was made behind closed doors — by two senators crammed into an old-fashioned phone booth built for one. The deal to delay a final vote on President Trump’s Supreme Court nominee was made behind closed doors Friday — by two senators crammed into a battered, old-fashioned phone booth built for one. 

washington post logoWashington Post, ‘I was demanding a connection’: Ana Maria Archila reflects on confronting Jeff Flake over Kavanaugh nomination, Elise Viebeck, Sept. 29, 2018 (print edition).  Ana Maria Archila had never told her father that she was sexually abused as a child. But after she confronted a U.S. senator about President Trump’s Supreme Court nominee and the video started going viral, she thought it was time to share her story.

“I always carried the fear that my parents would feel that they had failed in taking care of me if I told them,” Archila (co-executive director of the Center for Popular Democracy in New York) said Friday night in a phone interview with The Washington Post.

The encounter on Friday morning between Archila, a second woman and Sen. Jeff Flake (R-Ariz.) has already become an iconic moment in the debate over Judge Brett M. Kavanaugh’s nomination to the Supreme Court. With a CNN camera behind them broadcasting live, Archila and Maria Gallagher blocked the doors of an elevator for about five minutes in an effort to confront Flake about his just-announced support for Kavanaugh, who is facing several allegations of sexual misconduct.

Sept. 28

Supreme Court Battle

jeff flake oRoll Call, After Last-Second Talks to Delay, Judiciary Committee Advances Kavanaugh Nomination, John T. Bennett, Sept. 28, 2018. Flake joins other Republicans to set up floor vote despite call for delay. The Senate Judiciary Committee, after a gut-wrenching spectacle of a hearing Thursday and last-second negotiations among Sen. Jeff Flake, R-Ariz., right, and panel Democrats to delay a floor vote, voted to advance Brett Kavanaugh’s Supreme Court nomination to the chamber floor despite multiple sexual misconduct allegations against him.

The Friday vote was along party lines, 11-10, with all Democrats voting against him after siding with Christine Blasey Ford, who testified before the panel for four hours Thursday about her contention that Kavanaugh pinned her to a bed and intended to rape her in the early 1980s. She told the panel she came forward because she does not believe he should be a high court justice with a lifetime appointment.

“I think it would proper to delay the floor vote for up to but more than one week in order to let the FBI to do an investigation limited in time and scope to the current allegations that are there,” Flake said before the roll was called.

bill palmerPalmer Report, Analysis: Confirmed: FBI is now allowed to criminally pursue Brett Kavanaugh for lying to the Senate, Bill Palmer, right, Sept. 28, 2018. We’re already learning that the FBI is now allowed to pursue criminal charges against Kavanaugh if it’s determined that he lied under oath to the Senate.

Halfway through a lengthy new exposé from the Washington Post, we find this sentence regarding the the FBI investigation in question: “If investigators uncover evidence that Kavanaugh lied to lawmakers during hearings or on his background-check forms, that could spark a criminal investigation in which law enforcement could use the full extent of its legal powers.”

brett kavanaugh prison bar graphic palmer reportThis confirms Palmer Report’s earlier premise that once the FBI begins an investigation like this, there really are no limits to the FBI’s ability to follow the evidence to any and all federal crimes. By our count, Kavanaugh [shown in a Palmer Report graphic] appeared to commit at least four separate provable instances of perjury during his televised Senate testimony, even before the sexual assault accusations surfaced. He lied extensively about the circumstances under which he received and forwarded stolen emails, and among other issues.

This may help explain why Senate Democrats uniformly pushed so hard for an FBI investigation. Even if the FBI can’t prove within the next seven days that Brett Kavanaugh tried to rape Dr. Christine Blasey Ford, it can quickly and easily prove that he committed felony perjury.

ny times logoadam liptakNew York Times, A Bitter Nominee, Questions of Neutrality, and a Damaged Supreme Court, Adam Liptak, right, Sept. 28, 2018. In the first round of his Supreme Court confirmation hearings early this month, Judge Brett M. Kavanaugh kept his cool under hostile questioning, stressed his independence, and exhibited the calm judicial demeanor that characterized his dozen years on a prestigious appeals court bench.

“The Supreme Court,” he said, “must never be viewed as a partisan institution.”

His performance on Thursday, responding to accusations of sexual misconduct at a hearing of the same Senate committee, sent a different message. Judge Kavanaugh was angry and emotional, embracing the language of slashing partisanship. His demeanor raised questions about his neutrality and temperament, and threatened the already fragile reputation of the Supreme Court as an institution devoted to law rather than politics.

“This whole two-week effort has been a calculated and orchestrated political hit,” he said, “fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

In a sharp break with decorum, Judge Kavanaugh responded to questions about his drinking from two Democratic senators — Amy Klobuchar of Minnesota and Sheldon Whitehouse of Rhode Island — with questions of his own about theirs. He later apologized to Ms. Klobuchar.

brett kavanaugh nbc sept 27 2018 cropped reuters jim berg

Supreme Court nominee Brett Kavanaugh before Senate Judiciary Committee on Sept. 27, 2018 (Reuters photo by Jim Berg via NBC News)

washington post logoWashington Post, Kavanaugh hearing turns partisan as GOP senators lash out at treatment of nominee, Seung Min Kim, Ann E. Marimow, Mike DeBonis and Elise Viebeck, Sept. 28, 2018 (print edition). Sen. Graham rejects allegations, rips Democrats in a furious speech.

“To my Republican colleagues, if you vote no, you’re legitimizing the most despicable thing I’ve seen in my time in politics,” Sen. Lindsey Graham (R-S.C.) said.

Supreme Court nominee Brett M. Kavanaugh called his confirmation process a “national disgrace” and denied sexual assault allegations, which Christine Blasey Ford detailed in testimony earlier.

washington post logochristine blasey ford sept 27 2018Washington Post, 3 takeaways from the Kavanaugh hearing so far, Amber Phillips​, Sept. 28, 2018 (print edition). Republicans struggled to show they are taking it seriously. Meanwhile, Christine Blasey Ford, shown at right, cut a sympathetic, down-to-earth figure.

1. This isn’t going well for Republicans

2. Meanwhile, Ford came across as credible, emotional and sympathetic

3. Republicans' decision to hand their questions over to a female prosecutor is seeming questionable.

Daily Mail, New questions over who leaked Christine Ford's explosive accusation that Brett Kavanaugh tried to rape her, as reporter who broke the story says it WASN'T Dianne Feinstein and her staff, Alana Goodman, Sept. 28, 2018. The reporter who broke the story about the sexual assault allegations against Brett Kavanaugh said that the news was not leaked to him by Dianne Feinstein's office - as she launched a new defense of her handling of Christine Ford's accusation of the Supreme Court nominee.

ryan grim CustomRyan Grim, right, the D.C. bureau chief for The Intercept, was the first to report in September on the existence of a confidential letter written by Ford that accused Kavanaugh of sexually assaulting her at a party in the early 1980s. The story said there was 'tension' inside the Democratic membership over the handling of the letter.

Grim said late Thursday that the letter was not leaked to him by Feinstein or anyone in her office, as many have speculated. 'Feinstein's staff did not leak the letter to The Intercept,' said Grim in a Twitter post.

'Nor did she or her staff leak the existence of the letter to The Intercept. After our story, she turned it over to the FBI, which placed it in his background file, which meant that it became widely available and soon after it was leaked to CNN,' he added. Grim's story, which ran on Sept. 12, reported that Democrats on the Senate Judiciary Committee 'have privately requested to view a Brett Kavanaugh-related document' held by Feinstein. The story noted that Feinstein had rejected the requests.

ny times logoNew York Times, Kavanaugh Denies Sexual Assault Charges and Attacks Democrats in Scathing Testimony, Staff report, Sept. 28, 2018 (print edition). At an extraordinary hearing, Brett M. Kavanaugh denied that he sexually assaulted Christine Blasey Ford when they were in high school. In an angry statement to the Senate Judicial Committee he said the Supreme Court confirmation process had become “a national disgrace.”

The Hill, Jesuit magazine calls for Kavanaugh nomination to be withdrawn, Tal Axelrod, Sept. 27, 2018. The editors of America Magazine, a Jesuit publication, called on President Trump to withdraw Supreme Court nominee Judge Brett Kavanaugh’s nomination.

The piece was published after Kavanaugh and Christine Blasey Ford, a woman who accused Kavanaugh of trying to rape her in 1982 at a house party, testified before of the Senate Judiciary Committee about the allegations.

The editors wrote a piece in July praising Trump's nomination of Kavanaugh to replace retiring Justice Anthony Kennedy and Kavanaugh’s pro-life stance.

“Judge Kavanaugh is a textualist who is suspicious of the kind of judicial innovation that led to the court’s ruling in Roe. That decision removed a matter of grave moral concern—about which there was and remains no public moral consensus—from the democratic process,” they wrote at the time.

Kavanaugh attended Georgetown Preparatory School, a Jesuit high school.

The magazine’s reversal reflects the tumult into which sexual misconduct allegations have thrown Kavanaugh’s confirmation process.


Sept. 28, 2018

Justice Integrity Project, Lying Bullyboy Kavanaugh Goes Full Trump, Reverses Disaster

By Andrew Kreig

brett kavanaugh nbc cropped sept 27 2018Brett Kavanaugh gave his endangered Supreme Court nomination new life on Sept. 27 with apparently perjured testimony and by playing the victim during a hearing on sexual assault charges that was rigged by his Republican backers.

Kavanaugh's emotional mixture of self-pitying tears, obvious lies and belligerence towards Democratic senators followed President Trump's rhetorical model of "deny, deny, deny" and vicious political partisanship.

Trump, formally accused by 19 women of sexual assault or other sexual misconduct, portrayed himself as a victim in a rambling, 80-minute press conference on Sept. 26 in which he complained about mistreatment of Kavanaugh.

The nominee, shown in an NBC News photo at left Thursday snarling his comments at Democrats, delivered a hoked-up temper tantrum that appeared to salvage his hopes for his confirmation following three major accusations of sexual misconduct and Kavanaugh's robotic performance on Monday night during a Fox television interview.christine blasey ford sept 27 2018

It came after Fox News commentators Mike Wallace and Brit Hume had described the nominee's accuser Christine Brasey Ford as highly credible in her earlier sworn testimony. 

The majority of the Senate Judiciary Committee scheduled a vote on the nomination for 9:30 a.m. Friday, Sept. 28.

Dr. Brasey, right, told the committee that she was "100 percent" certain that Kavanaugh had been  the drunken teenager who had tried to rape her at a party when she was 15, thereby inflicting lifelong emotional trauma.

Several former prosecutors now serving as cable television commentators, including Cynthia Aksne and Daniel Goldman on MSNBC, described the witness's mixture of first-person experience and expertise as a psychologist as the most effective witness that they had ever seen.


washington post logoWashington Post, Several Democrats walk out of Kavanaugh meeting in protest, Seung Min Kim and John Wagner, Sept. 28, 2018. Senate committee decides along party lines to vote on nomination this afternoon. Red-state Democrat Sen. Joe Donnelly said he would vote against Supreme Court nominee Brett M. Kavanaugh. The Republicans had been courting him as well as Sen. Heidi Heitkamp (D-N.D.).

JIP Editor's Note: We excerpt the column below to debunk the right-wing propaganda smearing sexual assault victim Christine Brasey Ford. We do not endorse the obviously false claims that are being made against her.

christine blasey ford sept 27 2018Media Matters, Right-wing conspiracy theorists now claim Christine Blasey Ford is “deeply tied to the CIA,” Sarah Wasko, Sept. 28, 2018. Conservative radio host and conspiracy theorist Michael Savage is promoting a rapidly spreading conspiracy theory that professor Christine Blasey Ford, right, who says Supreme Court nominee Brett Kavanaugh sexually assaulted her when they were in high school, has “deep” connections to the Central Intelligence Agency.

Savage has pushed incredibly bizarre conspiracy theories and hateful rhetoric, and he has been closely connected to President Donald Trump and the White House. He pushed the latest conspiracy theory on Twitter and his website:

IS DR. FORD DEEPLY TIED TO THE CIA? — Michael Savage (@ASavageNation) 2:59 PM - Sep 27, 2018 Savage’s conspiracy theory makes three claims about Ford’s connections to the CIA, all of which are false or baseless:

1. The post claims that Ford “happens to head up the CIA undergraduate internship program at Stanford University.” This claim seems to originate from a conspiracy theory website,, that drew this conclusion because Stanford does have an undergraduate CIA internship program, and Ford, who is a psychology professor at nearby Palo Alto University, is also listed as an “affiliate” in the “psychiatry and behavioral sciences” department at Stanford. The blog post argues that it is suspicious that Ford’s contact information has been deleted from her Stanford profile page, although the more likely explanation is that it has been removed due to the threats and harassment that Ford has received since coming forward.

2. The theory draws another connection between Ford and the CIA via her brother’s previous work for law firm BakerHostetler. A previous Ford-related conspiracy theory connected her brother’s work at BakerHostetler to Fusion GPS, a research firm involved in the ongoing Russian collusion investigation. However, Ford’s brother left BakerHostetler six years before Fusion GPS was ever founded. Savage’s conspiracy theory repeats this false claim and goes even further, claiming that three CIA-controlled businesses are located in the same building as BakerHostetler. There is no evidence these businesses are connected to the CIA -- in fact, one, Red Coats, Inc., is a janitorial company that does not even share office space with BakerHostetler.

3. Savage’s post also claims that Ford is the granddaughter of Nicholas Deak, who worked with the CIA during the Cold War. According to his 1985 Washington Post obituary, Deak only had one child, a son named R. Leslie Deak. But as the conspiracy theory’s second claim also notes, Ford’s father is actually Ralph Blasey Jr.Savage’s false claim is rapidly spreading, and was promoted during Alex Jones’ September 28 broadcast. The conspiracy theory is also indicative of how search platforms like Google amplify such clear falsehoods. A Google search for “Christine Ford CIA” done in a private browsing window aggregated YouTube videos pushing the conspiracy theory and Savage’s website as the top results:

washington post logoWashington Post, ‘Look at me when I’m talk­ing to you!’: Crying protester confronts Sen. Flake after he says he'll vote for nominee, Lindsey Bever​, Sept. 28, 2018. Two women tearfully and loudly confronted the Arizona Republican in an el­e­va­tor, tell­ing Sen. Jeff Flake that he was dis­miss­ing the pain of sex­ual as­sault survivors.

After Sen. Jeff Flake’s announcement that he would, in fact, vote to confirm Judge Brett M. Kavanaugh to the U.S. Supreme Court, the emotional debate over the confirmation spilled into the halls of Congress, on live television, as two women tearfully and loudly confronted the Arizona Republican in an el­e­va­tor, tell­ing Flake that he was dis­miss­ing the pain of sex­ual as­sault survivors.

“What you are doing is allowing some­one who ac­tu­al­ly vio­lat­ed a woman to sit in the Su­preme Court,” one woman shout­ed during a live CNN broadcast as Flake was making his way to a Senate Judiciary Committee meeting. “This is hor­rible. You have chil­dren in your fam­i­ly. Think a­bout them.”

bill palmerPalmer Report, Opinion: Donald Trump’s pal Alan Dershowitz shockingly tries to put the brakes on Brett Kavanaugh nomination, Bill Palmer, right, Sept. 28, 2018. After Dr. Christine Blasey Ford gave credible and compelling testimony yesterday alleging that Supreme Court nominee Brett Kavanaugh tried to rape her, and Kavanaugh responded by having a mental breakdown during his own subsequent testimony, various entities called for a halt to the nomination so an FBI investigation could be conducted.

Not surprisingly, the American Bar Association was among them. Shockingly, so was Donald Trump’s pal Alan Dershowitz.

Not long before midnight eastern time, it was widely reported that the ABA had sent a letter to Chuck Grassley and Dianne Feinstein, arguing that the FBI must step in and help determine whether Kavanaugh or Ford is telling the truth. This is a major development, but perhaps not surprising.

On the one hand, with the Brett Kavanaugh nomination now rapidly shaping up as a stain on American history, it’s possible that Alan Dershowitz may simply be trying to avoid taking one more reputational hit as he continues to turn into more of a Trump shill.

On the other hand, maybe Dershowitz really is trying to talk Trump into moving on from Kavanaugh, for fear that pushing any further forward could backfire.

Democrats Threatened With Senate Reprisals

lindsey grahamRoll Call, Lindsey Graham to Democrats: ‘I’ll Remember This,’John T. Bennett, Sept. 28, 2018. South Carolina senator could be Judiciary chairman next year if GOP holds Senate.

Lindsey Graham, right, who could become Senate Judiciary Committee chairman next year, warned his Democratic colleagues Friday that he will remember how they handled the Brett Kavanaugh saga.

“If I am chairman, next year, I’m going to remember this,” the South Carolina Republican said before a planned vote on the Supreme Court nominee.

“There’s the process before Kavanaugh and the process after Kavanaugh. If you want to vet the nominee, you can. If you want to delay things until after the election, you cannot. If you try to destroy somebody, you will not get away with it.”

CNN, Democrats seize on circumstantial July 1 theory for Kavanaugh and Ford, Zach Wolf, Sept. 28, 2018. CNN Sen. Jeff Flake demanded a potentially week-long pause on the Supreme Court nomination of Brett Kavanaugh Friday so the FBI could do a limited investigation in to the sexual assault allegation levied against him by Christine Blasey Ford in searing testimony Thursday.

Vox, Every time Ford and Kavanaugh dodged a question, in one chart, Alvin Chang, Sept. 28, 2018. There was a striking difference in style — and substance. There were several noticeable differences between the Senate testimony of Supreme Court nominee Brett Kavanaugh and the woman accusing him of sexual assault, Christine Blasey Ford.

The most obvious was the tone each took. Ford was polite and quiet in recounting her accusation against Kavanaugh; he was angry and loud in his denials of the allegations against him.

Beyond the style of their testimonies, there was a striking difference in the content of their words. Both Ford and Kavanaugh fielded questions from senators and the prosecutor hired by Republicans, Rachel Mitchell.

washington post logoWashington Post, Here’s where Kavanaugh’s sworn testimony was misleading or wrong, Philip Bump, Sept. 28, 2018. From obvious falsehoods about his drinking to misrepresentations of exonerating evidence.

The Intercept, Kavanaugh’s High School, Georgetown Prep, Warned Parents in 1990 of “Sexual or Violent Behavior” at Parties, Jon Schwarz and Camille Baker, Sept. 28, 2018. According to a 1990 article in the Washington Post, the headmasters from seven prestigious Washington, D.C.-area private schools sent a joint letter that year to parents, warning them that their children had developed a party culture that included heavy drinking leading to “sexual or violent behavior.”

One of the schools was Georgetown Prep, from which Supreme Court nominee Brett Kavanaugh graduated in 1983. Christine Blasey Ford, who during congressional testimony on Thursday described being sexually assaulted by Kavanaugh in 1982, attended another of the schools, Holton-Arms.

The Post article also reported that before the letter was sent, Georgetown Prep had individually “held a conference with parents to discuss the problem of unsupervised parties.”

Malcolm Coates, then the headmaster of the Landon School in Bethesda, Maryland, is quoted as saying that the schools decided to write the letter jointly “to give it more impact. … The fact that seven schools decided it was enough of a problem to address it is significant.”

Sept. 27

brett kavanaugh nbc sept 27 2018 cropped reuters jim berg

Supreme Court nominee Brett Kavanaugh before Senate Judiciary Committee on Sept. 27, 2018 (Reuters photo by Jim Berg via NBC News)

Roll Call, Senate Judiciary to Vote Friday on Kavanaugh Nomination, Todd Ruger, Sept. 27, 2018. Decision came after nearly nine hours of testimony from nominee and accuser

New York Magazine, Opinion: Why Brett Kavanaugh’s Hearings Convinced Me That He’s Guilty, Jonathan Chait, Sept. 27, 2018. I think Brett Kavanaugh is probably lying about having sexually assaulted Christine Blasey Ford, and many other things, and has decided from the beginning to say what he has to in order to fulfill his career ambition.

There is, however, at least some, small chance that he is telling the truth when he professes his innocence. And that small chance gives me some sympathetic human reaction to his emotional testimonial. If he is somehow innocent, as he claims, he has been subject to a horrifying and humiliating ordeal.

That, however, does not justify confirming Kavanaugh to a lifelong position on the Supreme Court. He has, for one thing, all but abandoned the posture of impartiality demanded of a judge. A ranting Kavanaugh launched angry, evidence-free charges against Senate Democrats. Why they took this revenge against Kavanaugh, rather than the first justice who was appointed after the 2016 elections, when Democrats’ anger over both the election and the treatment of Merrick Garland ran hotter, he did not say. Kavanaugh does not seem able to imagine even the possibility that Democrats actually believe the women accusing him of sexual assault. He is consumed with paranoid, partisan rage.

The method Republicans have used to defend Kavanaugh has consisted of suppressing most of the evidence that could be brought to bear in the hearing, and then complaining about the lack of evidence. “Unless something new comes forward, you have just an emotional accusation and an emotional denial without corroboration,” said Senator Lindsey Graham. Conservative columnist Kimberly Strassel argued, “The standard here isn’t where you ‘look’ or ‘sound’ ‘credible.’ It is whether you provide evidence.”

washington post logochristine blasey ford sept 27 2018Washington Post, 3 takeaways from the Kavanaugh hearing so far, Amber Phillips​, Sept. 27, 2018. Republicans struggled to show they are taking it seriously. Meanwhile, Christine Blasey Ford, shown at right, cut a sympathetic, down-to-earth figure.

1. This isn’t going well for Republicans2. Meanwhile, Ford came across as credible, emotional and sympathetic3. Republicans' decision to hand their questions over to a female prosecutor is seeming questionable.

ny times logoNew York Times, Kavanaugh Denies Sexual Assault Charges and Attacks Democrats in Scathing Testimony, Staff report, Sept. 27, 2018. At an extraordinary hearing, Brett M. Kavanaugh denied that he sexually assaulted Christine Blasey Ford when they were in high school. In an angry statement to the Senate Judicial Committee he said the Supreme Court confirmation process had become “a national disgrace.”

Roll Call, Kavanaugh Comes Out of Gate Angry, Says Confirmation Process Is ‘National Disgrace,’ John T. Bennett, Sept. 27, 2018. An angry Supreme Court nominee Brett Kavanaugh, facing sexual assault allegations, opened up his testimony Thursday by calling the situation a “national disgrace.”

He lamented that his name and that of his family have been “totally and permanently destroyed by vicious and false … accusations.”

Three women have come forward with allegations of sexual assault or sexual misconduct against Kavanaugh. Christine Blasey Ford, his first accuser who testified before the Senate Judiciary Committee earlier Thursday, has accused the nominee of sexually assaulting her at a party in the 1980s when the two were in high school. Supreme Court nominee aggressively foists blame on Democrats, accuses them of character assassination.

washington post logoWashington Post, Chuck Grassley’s heavy-handed stewardship of a very delicate hearing, Aaron Blake​, Sept. 27, 2018. Republicans have taken pains to prevent their 11 white, male committee members from talking. Grassley, though, has no choice.

washington post logoorrin hatch oWashington Post, Ford finishes her testimony, Kavanaugh to testify, Seung Min Kim, Ann E. Marimow, Mike DeBonis and Elise Viebeck​, Sept. 27, 2018. Sen. Hatch, right, calls Christine Blasey Ford an ‘attractive’ witness.

Sen. Orrin G. Hatch (R-Utah), a member of the Senate Judiciary Committee and the longest-serving member of the Senate, was asked whether Ford was “credible” in her testimony. “I don’t think she’s un-credible." he said. "I think she’s an attractive, good witness."

ny times logoNew York Times, Nomination in the Balance as Kavanaugh and His Accuser Testify, Catie Edmondson, Sept. 27, 2018. Christine Blasey Ford, shown in a file photo, is set to appear before the Senate Judiciary Committee to testify about her accusation that Judge Brett M. Kavanaugh sexually assaulted her. Since Dr. Blasey came forward, two christine blasey ford headshot croppedmore women have accused Judge Kavanaugh of sexual misconduct at parties in high school and in college. 

An hour before the hearing, Senator Patty Murray, Democrat of Washington, held a news conference in support of Dr. Blasey, flanked by trauma experts who spoke of the difficult and often hostile cultural attitudes faced by survivors of sexual abuse.

patty murray oMs. Murray, left, was one of a number of female senators who was emboldened to run for office after watching Anita F. Hill testify in 1991, and she referenced that experience directly, calling on her colleagues to learn from their past mistakes.

“In 1991, I and millions of women across the country watched as Anita Hill was interrogated and attacked and the Senate failed this crucial test,” Ms. Murray said. holton arms school logo“Twenty-seven years later, in 2018, we need to do better and we certainly should not do worse.”

As Ms. Murray delivered her remarks, dozens of protesters supporting Dr. Blasey poured into the Hart Senate Office Building, chanting “we won’t go back” and wearing shirts that said “Believe Women.” Four young women, wearing their Holton-Arms uniforms, walked through the Hart office buildings hallways, arms linked together.

senate gop judiciary

Republican U.S. Senate Judiciary Committee Members

U.S. Senate Judiciary Committee Republicans

  • chuck grassley officialChuck Grassley, Iowa, Chairman, right.
  • Orrin Hatch, Utah.
  • Lindsey Graham, South Carolina.
  • John Cornyn, Texas.
  • Mike Lee, Utah.
  • Ted Cruz, Texas.
  • Ben Sasse, Nebraska.
  • Jeff Flake, Arizona.

washington post logoWashington Post, Who is Julie Swetnick, the third accuser? Michael E. Miller, Steve Hendrix, Jessica Contrera and Ian Shapira, July 27, 2018. The 55-year-old is an experienced web developer in the Washington area and has held multiple security clearances for her work on government-related networks.

julie swetnickJulie Swetnick, right, who Wednesday became the third woman to accuse Supreme Court nominee Brett M. Kavanaugh of sexual misconduct, is an experienced Web developer in the Washington area who has held multiple security clearances for her work on government-related networks.

The child of two government bureaucrats — her father worked on the lunar orbiter for NASA and her mother was a geologist at the Atomic Energy Commission — has spent most of her life around Washington. Now 55, she grew up in Maryland and graduated in 1980 from Gaithersburg High School, located in a far less affluent section of the same county where Kavanaugh lived and attended an exclusive prep school.

Swetnick’s father, 95, said Wednesday he was shocked to learn from a Washington Post reporter that his daughter had made the explosive allegations.

ny times logoNew York Times, What We Know About Rachel Mitchell, the Arizona Prosecutor Set to Question Kavanaugh’s First Accuser, Matt Stevens, Sept. 27, 2018 (print edition). The Senate Judiciary Committee’s Republican leadership said Tuesday that it had retained Rachel Mitchell, an Arizona prosecutor specializing in sex crimes, to help question Christine Blasey Ford, Judge Brett M. Kavanaugh’s first accuser. Rachel Mitchell, right, is shown during a TV interview in 2011 (Screenshot from ABC 15.)rachel mitchell 2011 screenshot

The move allows Republicans to avoid having the 11 men who are part of the committee and in their party grill Dr. Blasey on Thursday about the alleged sexual assault in high school that she says a young Judge Kavanaugh carried out.

Trump Psyche

Donald Trump (Defense Department photo by Dominique Pineiro)

washington post logoWashington Post, Trump laments #MeToo as ‘very dangerous’ for powerful men, Philip Rucker, Robert Costa, Josh Dawsey and Ashley Parker, Sept. 27, 2018 (print edition). President Trump, shown in a file photo, cast doubt on the credibility of three women who have accused Supreme Court nominee Brett M. Kavanaugh of sexual misconduct and other women who have claimed sexual abuse by prominent men.

washington post logoWashington Post, ‘Give it to me’: Trump lets loose with 81 minutes of bluster, falsehoods and insults, Ashley Parker, Sept. 27, 2018 (print edition). What was perhaps most remarkable was just how transparent and revealing the 45th president of the United States continues to be.

Media News

kirsten powers michael caputo cnn sept.26 2018

CNN guest commentators Kirsten Powers and Michael Caputo, right, squared off on the show of Anderson Cooper, left.

washington post logoWashington Post, ‘I called out his victim blaming and he lost it,’ says Kirsten Powers after Michael Caputo’s CNN meltdown, Allyson Chiu, Sept. 27, 2018. Michael Caputo, a former Trump campaign aide turned political strategist and conservative pundit, was thrust into the spotlight after having what many are calling a “meltdown” during a heated panel discussion about the controversial allegations against Kavanaugh on Anderson Cooper’s “AC360” Wednesday night.

Sept. 26

Sept. 26, 2018.

brett kavanaugh 5 ways to thwart gop court fraud

Justice Integrity Project, Kavanaugh Rape Charge: 1 of 5 Ways To Thwart GOP Court Fraud

By Andrew Kreig,

A new accuser has named Supreme Court nominee Brett Kavanaugh on Sept. 26 as being present during her long ago gang rape at a party.

But justice seekers need much tougher tactics to counter the ruthless senators and their puppet masters who are now ramming the nominee through to confirmation without an honest investigation.

This column argues that reformers need to implement five strategies beginning today before the sham Senate hearing that is scheduled Thursday for new accusations against Kavanaugh. [The column has been updated after being published early on Wednesday, Sept. 26, which was before attorney Michael Avenatti announced the identity of his client who would make explosive charges against Kavanaugh.]

Later that morning, Avenatti released via Twitter a sworn statement by a longtime federal employee, Julie Swetnick, identifying Kavanaugh and his friend Mark Judge as being present for a “gang rape” that Swetnick said victimized her at one one of about of about 10 house parties she says that she attended with them in the Washington, DC area in the early 1980s. She is shown at left in a photo released by her attorney.julie swetnick full photo via michael avenatti

“I also witnessed,"  the statement said, "efforts by Mark Judge, Brett Kavanaugh and others to cause girls to become inebriated and disoriented so they could then be ‘gang raped’ in a side room or bedroom by a ‘train’ of numerous boys ... These boys included Mark Judge and Brett Kavanaugh ... In approximately 1982, I became the victim of one of these ‘gang’ or ‘train’ rapes where Mark Judge and Brett Kavanaugh were present,” she added.

Avenatti wrote also, "Here is a picture of my client Julie Swetnick. She is courageous, brave and honest. We ask that her privacy and that of her family be respected."

Kavanaugh responded by reiterating his denial of wrongdoing. In a rambling 80-minute press conference filled vague if not misleading comments, President Trump restated his support for Kavanaugh, his denunciations of Avenatti and left open the possibility that he might change his mind after hearing from Kavanaugh's accusers in a Senate Judiciary Committee hearing on Thursday.

Trump seemed unaware for most of the conference until near the end that Senate Republicans have not permitted Swetnick and another accuser, Deborah Ramirez, either to speak to the committee or to the FBI in a renewed investigation. Trump said also that his own experience in being accused of sexual misconduct had made him especially sympathetic to Kavanaugh.

The Hill, Avenatti releases client’s identity, allegations against Kavanaugh, Tal Axelrod, Sept. 26, 2018. Avenatti claims client has 'credible information' on Kavanaugh, ex-classmate. Michael Avenatti, the attorney representing adult film actress Stormy Daniels in her suit against President Trump released the identity of his client accusing Brett Kavanaugh of being present for a “gang rape” of which she was a victim.

michael avenatti sketchAvenatti tweeted out a sworn testimony from Julie Swetnick in which she declares she met Kavanaugh in “approximately 1980-1981” and attended several house parties for which Kavanaugh and his friend Mark Judge were also present.

Her affidavit states:

“I witnessed Mark Judge and Brett Kavanaugh drink excessively and engage in highly inappropriate conduct, including being overly aggressive with girls and not taking ‘No’ for an answer. This conduct included the fondling and grabbing of girls without their consent,” Swetnick writes.

“I also witnessed efforts by Mark Judge [shown at right], Brett Kavanaugh and others to cause girls to become inebriated and disoriented so they could then be ‘gang raped’ in a side room or bedroom by a ‘train’ of numerous boys ... These boys included Mark Judge and Brett Kavanaugh ... In approximately 1982, I became the victim of mark judge twitterone of these ‘gang’ or ‘train’ rapes where Mark Judge and Brett Kavanaugh were present,” she added.

Avenatti wrote: "Here is a picture of my client Julie Swetnick. She is courageous, brave and honest. We ask that her privacy and that of her family be respected."

Avenatti, who has not ruled out a bid for the White House in 2020, said, “Under no circumstances should Brett Kavanaugh be confirmed absent a full and complete investigation.”

Below is my correspondence to Mr. Davis of moments ago, together with a sworn declaration from my client. We demand an immediate FBI investigation into the allegations. Under no circumstances should Brett Kavanaugh be confirmed absent a full and complete investigation.

— Michael Avenatti (@MichaelAvenatti) 10:42 AM - Sep 26, 2018.

washington post logoWashington Post, Kavanaugh nomination: Judge says he is victim of ‘character assassination’ as third woman comes forward, John Wagner, Sept. 26, 2018. Uncertainty looms over Kavanaugh and the GOP after new misconduct allegation.

brett kavanaugh zina bash c span sept 2018Judge Brett M. Kavanaugh [shown in a screenshot from the confirmation hearing] is scheduled to appear Thursday before the Senate Judiciary Committee at a high-stakes hearing. The committee will hear from Christine Blasey Ford, the woman who says President Trump’s Supreme Court nominee sexually assaulted her when both were teenagers.

Lawmakers from both parties and lawyers for Kavanaugh and Ford maneuvered for advantage on the eve of the hearing, and President Trump weighed in on the fate of his nominee.

12:50 p.m.: Trump attacks Avenatti as ‘a total low-life!’

President Trump on Wednesday lashed out at Michael Avenatti, the lawyer representing a new accuser of Judge Brett M. Kavanaugh.

“Avenatti is a third rate lawyer who is good at making false accusations, like he did on me and like he is now doing on Judge Brett Kavanaugh,” Trump said in a tweet. “He is just looking for attention and doesn’t want people to look at his past record and relationships - a total low-life!”

Avenatti also represents Stormy Daniels, the adult film actress who was paid by a personal attorney for Trump to remain quiet about an alleged decade-old affair with Trump.

On Wednesday, Avenatti revealed that he is representing Julie Swetnick, who said Kavanaugh was physically abusive toward girls in high school and present at a house party in 1982 where she says she was the victim of a “gang” rape.

12:45 p.m.: Grassley says new accuser won’t affect Thursday’s hearing

Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) said the emergence of a third accuser would not affect the hearing scheduled Thursday at which the panel will hear from Christine Blasey Ford about her allegations of sexual assault against Judge Brett M. Kavanaugh.

Speaking to reporters, Grassley cited Ford’s welfare. “I feel we shouldn’t disadvantage Dr. Ford any more than she’s already been disadvantaged,” he said.

12:30: Kavanaugh says third accuser’s allegations are ‘from the Twilight Zone’

Judge Brett M. Kavanaugh on Wednesday dismissed the allegations of a third accuser as “ridiculous and from the Twilight Zone.” Judge Brett M. Kavanaugh is scheduled to appear Thursday before the Senate Judiciary Committee at a high-stakes hearing. The committee will hear from Christine Blasey Ford, the woman who says President Trump’s Supreme Court nominee sexually assaulted her when both were teenagers.

Lawmakers from both parties and lawyers for Kavanaugh and Ford maneuvered for advantage on the eve of the hearing, and President Trump weighed in on the fate of his nominee.

washington post logosupreme court graphicWashington Post, Arizona prosecutor Rachel Mitchell emerges as GOP choice to question Kavanaugh and accuser at hearing, Sean Sullivan, Josh Dawsey and Rosalind S. Helderman, Sept. 26, 2018 (print edition). Arizona prosecutor Rachel Mitchell has emerged as Senate Republicans’ choice to question Brett M. Kavanaugh and the woman who has accused the Supreme Court nominee of sexually assaulting her when they were teenagers, according to two people familiar with the decision.

Mitchell, the sex crimes bureau chief for the Maricopa County Attorney’s office in Phoenix, is the leading candidate to query the two at Thursday’s highly anticipated hearing in the Senate Judiciary Committee, according to the individuals.

They spoke on the condition of anonymity because they were not authorized to discuss it on the record. A registered Republican, Mitchell has worked for the Maricopa County Attorney’s Office for 26 years.

washington post logoWashington Post, Brett Kavanaugh has no good choices anymore, Deanna Paul, Sept. 26, 2018. Allegations of decades-old sexual misconduct resurfaced days before Judge Brett M. Kavanaugh was all but set to sail through his confirmation to the U.S. Supreme Court. Kavanaugh categorically denied each claim of misconduct in a letter to the Senate Judiciary Committee and in an interview with Fox News on Monday, vowing to fight the accusations and defend himself.

The controversial nominee is faced with two unattractive options: withdraw or testify at a second hearing Thursday. He has pledged to do the latter, though either leaves his name tarnished.

“It’s difficult to imagine an exit strategy that’s not personally and professionally devastating for Kavanaugh,” Jonathan Turley, a George Washington University Law School professor, told The Washington Post on Tuesday. Those encouraging the federal judge to withdraw are telling him to cut his losses, Turley said. But the losses are quite considerable.

ny times logoNew York Times, Kavanaugh’s Calendar Portrays Party-Filled Summer for Supreme Court Nominee, Nicholas Fandos, Sept. 26, 2018. The Senate Judiciary Committee released the handwritten calendar pages kept by a teenage Brett Kavanaugh from the summer of 1982. Further clouding Judge Kavanaugh’s confirmation, a third woman has come forward to accuse him of misconduct during high school.

brett kavanaugh 1982 calendars released judiciary committeeThe Senate Judiciary Committee released calendar pages [one is shown] from the summer of 1982 on Wednesday that paint an image of a party-hopping Brett M. Kavanaugh in high school, complicating his self-drawn portrait of a diligent student obsessed mainly with sports and reaching the top of his class

At the same time, lawyers for the woman who has accused Judge Kavanaugh of sexually assaulting her that summer, Christine Blasey Ford, gave the committee four affidavits — one from Dr. Blasey’s husband and three from friends — stating that she had told them in recent years that President Trump’s Supreme Court nominee had assaulted her in high school.

Released as both sides prepare for an extraordinary public hearing before the Judiciary Committee on Thursday, neither disclosure proves or disproves the cases that Dr. Blasey or Judge Kavanaugh have sought to advance, but Democratic senators are likely to use the calendars to question how truthful Judge Kavanaugh has been about his younger days. And although the affidavits suggest that Dr. Blasey’s story has been consistent, Republicans are more likely to focus on the lack of contemporaneous evidence that could corroborate her story.

ny times logoNew York Times, What We Know About Rachel Mitchell, the Arizona Prosecutor Set to Question Kavanaugh’s First Accuser, Matt Stevens, Sept. 26, 2018. The Senate Judiciary Committee’s Republican leadership said Tuesday that it had retained Rachel Mitchell, an Arizona prosecutor specializing in sex crimes, to help question Christine Blasey Ford, Judge Brett M. Kavanaugh’s first accuser.

The move allows Republicans to avoid having the 11 men who are part of the committee and in their party grill Dr. Blasey on Thursday about the alleged sexual assault in high school that she says a young Judge Kavanaugh carried out.

dianne feinsteinPolitico, Feinstein: Kavanaugh misled about grand jury secrecy in Vince Foster probe, Josh Gerstein, Sept. 26, 2018. The top Democrat on the Senate Judiciary Committee is accusing Supreme Court nominee Brett Kavanaugh of misleading the Senate about his handling of grand jury secrets while working for Independent Counsel Kenneth Starr two decades ago.

Kavanaugh's nomination has run into trouble in the last two weeks over allegations of sexual assault by two women, but Democrats have also complained that he misled them during his Senate testimony on a number of issues, including his handling of warrantless wiretapping and detainee policy in the George W. Bush administration.

Sen. Dianne Feinstein, right, told Politico that she has now identified another area in which she believes Kavanaugh was not truthful in communications with senators. She said that by directing officials to speak to reporters during the investigation of President Bill Clinton, Kavanaugh may have violated grand jury secrecy laws -- even though he told her and Sen. Sheldon Whitehouse (D-R.I.) he never broke those rules.

"According to a memo from the National Archives, Brett Kavanaugh instructed Hickman Ewing, a colleague and deputy counsel in the Starr investigation, to ‘call [Chris] Ruddy’ about matters before a grand jury, which would be illegal to disclose," Feinstein said in a statement to POLITICO. "I asked Judge Kavanaugh in questions for the record whether he had shared ‘information learned through grand jury proceedings.’ His answer, which says that he acted ‘consistent with the law,’ conflicts with the official memo from Mr. Ewing. Disclosing grand jury information is against the law and would be troubling for any lawyer, especially one applying for a promotion to the highest court in the country.”

Sept. 25

Vox, The Senate Judiciary Committee scheduled a vote on Kavanaugh even though his accuser hasn’t testified, Li Zhouli, Sept. 25, 2018. The vote’s just one day after a hearing scrutinizing sexual misconduct allegations.

chuck grassley oSenate Judiciary Chair Chuck Grassley (R-IA), right, has rescheduled a committee vote on Supreme Court nominee Brett Kavanaugh for this upcoming Friday. That’s just one day after a hearing that will take place on Thursday, which is set to scrutinize sexual misconduct and assault allegations that have been brought against Kavanaugh.

Grassley’s announcement of the committee vote is the latest signal that Republicans are ready to barrel ahead with Kavanaugh’s confirmation, in spite of the recent accusations that have been levied by Christine Blasey Ford and Deborah Ramirez. Ford — who has said that Kavanaugh tried to force himself on her while both of them were in high school — is set to testify, along with Kavanaugh, on Thursday. Kavanaugh has unequivocally denied all of the allegations.

Senate Majority Leader Mitch McConnell on Tuesday emphasized that he was eager to hear from Ford — while simultaneously casting doubt on the legitimacy of her allegations.

washington post logoWashington Post, Three Yale Law School classmates who endorsed Kavanaugh call for investigation into sexual misconduct claims, Elise Viebeck, Sept. 25, 2018. Three former akhil amar colorYale Law School classmates who endorsed Supreme Court nominee Brett M. Kavanaugh called Tuesday for an investigation into allegations by two women that he engaged in sexual misconduct in the 1980s.

Kent Sinclair, Douglas Rutzen and Mark Osler were among roughly two dozen of Kavanaugh’s law school classmates who lauded Kavanaugh’s qualifications in an Aug. 27 letter to leaders of the Senate Judiciary Committee.

Their support for an investigation came as Yale Law professor Akhil Amar, right — who taught Kavanaugh and testified on his behalf before the committee this month — also called for a probe into what he described as “serious accusations” from the women.

lisa murkowski ony times logoNew York Times, Senator Lisa Murkowski, Republican of Alaska and a key swing vote, delivered a message: Take the Kavanaugh accusations seriously, Nicholas Fandos, Sept. 25, 2018. Republican Party leaders may be insisting that they will install Judge Brett M. Kavanaugh on the Supreme Court, but Senator Lisa Murkowski of Alaska is offering a blunt warning of her own: Do not prejudge sexual assault allegations against the nominee that will be aired at an extraordinary public hearing on Thursday.

“We are now in a place where it’s not about whether or not Judge Kavanaugh is qualified,” Ms. Murkowski, right, a key swing Republican vote, said in an extended interview in the Capitol Monday night. “It is about whether or not a woman who has been a victim at some point in her life is to be believed.”

ny times logoNew York Times, Trump Accuses Democrats of Running ‘Con Game’ Against Kavanaugh, Mark Landler and Peter Baker, Sept. 25, 2018. Speaking in New York, President Trump disparaged a woman who accused Judge Brett M. Kavanaugh of exposing himself to her, saying she was “messed up” and “drunk” at the time.

President Donald Trump officialPresident Trump accused Democrats of orchestrating “a con game” against Judge Brett M. Kavanaugh in hopes of blocking his ascension to the Supreme Court and said that one of two women who have accused the nominee of misconduct as a student was “messed up” and “drunk” at the time.

Dispensing again with the restraint that advisers have urged him to exercise, Mr. Trump went beyond defending Judge Kavanaugh into attack mode, saying that Democrats were “making him into something he’s not” as part of a strategy to “delay and obstruct” his confirmation.

“I think it’s horrible what the Democrats have done. It’s a con game,” he said while in New York for the annual session of the United Nations General Assembly. “They’re playing a con game,” the president repeated, and added, “They’re playing actually much better than the Republicans.”

deborah ramirez benjamin rasmussen new yorkerMr. Trump singled out the latest accuser, Deborah Ramirez, right, who said in an interview with The New Yorker that Judge Kavanaugh exposed himself to her during a drinking party at Yale University. “She was totally messed up,” Mr. Trump said. “The second accuser has nothing,” he added. “She admits she was drunk.”

Dispensing again with the restraint that advisers have urged, Mr. Trump went beyond defending Judge Kavanaugh into attack mode.

washington post logoWashington Post, White House open to testimony from second Kavanaugh accuser, Sanders says, John Wagner​, Sept. 25, 2018. Deborah Ramirez alleges that the Supreme Court nominee exposed himself at a party when both were Yale University students.

washington post logoWashington Post, Kavanaugh, in emotional interview on Fox News, says he has no intention of bowing out, Sean Sullivan, Seung Min Kim and John Wagner, Sept. 25, 2018. The nationally televised interview marked a new tactic for Brett M. Kavanaugh, who has mostly avoided media attention since being accused of sexual assault.

washington post logoWashington Post, Analysis: Brett Kavanaugh’s Fox News interview transcript, annotated, Aaron Blake, Sept. 25, 2018 (print edition). Facing multiple accusations of sexual misconduct, Brett Kavanaugh took an unusual step for a Supreme Court nominee on Monday night: Appearing on television. Kavanaugh’s Fox News interview included repeated references to wanting a fair process as he disputes allegations made by Christine Blasey Ford and Deborah Ramirez.

Appearing next to his wife, Ashley Estes Kavanaugh, he also asserted he had never been blackout drunk and that he was a virgin until “many years” after high school. Below is the full transcript, with annotations and analysis in yellow.

ny times logoNew York Times, Opinion: Judge Kavanaugh’s “golden résumé” has turned into a lead weight, our columnist writes, Carl Hulse, Sept. 25, 2018. President Trump thinks Judge Brett M. Kavanaugh has the perfect pedigree for a spot on the Supreme Court.

“They were saying it 10 years ago about him: He was born for the Supreme Court,” Mr. Trump exclaimed over the weekend at a rally in Missouri. “He was born for it. And it’s going to happen.”

At the moment of his nomination, Judge Kavanaugh did truly seem like a test-tube version of a Republican Supreme Court nominee. The right schools. The right friends. The right clerkships. The right mentors. The right White House experience. The right appeals court slot. Republican senators said he might be the most qualified nominee ever. It was all set.

Right up until it wasn’t. Now, with his confirmation in such jeopardy that he felt compelled to defend himself in a Fox News television interview on Monday, some of the glittery inside-the-Beltway aspects of his résumé that made him so appealing to his enthusiastic supporters are putting his ascension to the country’s top court in doubt.

Start with Judge Kavanaugh’s schooling, a period that has given rise to the most serious threat to his confirmation: accusations of sexual misconduct. He is the product of the elite Georgetown Preparatory School just outside Washington, as well as Yale University and Yale Law School, proven incubators of Supreme Court justices. Degrees from those institutions are treated as strong evidence of academic rigor and excellence.

But accusations from two women who say they were subjected to sexual assault by Judge Kavanaugh during his years at the schools have exposed a dark side of such privileged education. “He has a golden résumé, but appears to be a deeply flawed nominee,” said Senator Richard Blumenthal, Democrat of Connecticut, who sits on the Judiciary Committee.

The Intercept, Analysis: How One Senator Cornered Brett Kavanaugh About His Mentor’s Sexually Explicit Emails, Akela Lacy, Ryan Grim, Sept. 25, 2018. Two days from now, Brett Kavanaugh will resume testimony before the Senate Judiciary Committee. As a confirmation vote looms as early as Friday or Saturday, the question of his credibility has never been more critical.

alex kozinski informal wThroughout his confirmation process, Kavanaugh has consistently denied knowledge of his mentor Judge Alex Kozinski’s years of sexual harassment, for which he was finally brought down in December 2017.[The judge, regarded as a feeder to right-wing Supreme Court justice clerkships, is shown in a file photo.]

The news, Kavanaugh told the Senate Judiciary Committee under oath, was a “gut punch.”

Under follow-up questioning from Sens. Mazie Hirono and Chris Coons, Democrats from Hawaii and Delaware respectively, he expanded his denials to include any knowledge of the email list Kozinski used to distribute pornography and off-color jokes to court employees. That denial is crucial, because if it’s false, it demonstrates that Kavanaugh lied about what he knew of Kozinski’s behavior. And that he’s still lying.

And the answer is knowable. Following the hearing, Coons asked Kavanaugh a set of direct written questions that was met with a tellingly vague response.

washington post logoWashington Post, White House hit with one-two punch over Kavanaugh and Rosenstein, Philip Rucker, Ashley Parker and Josh Dawsey, Sept. 25, 2018 (print edition). As President Trump simmers over the “molasses-like” pace of the confirmation of his Supreme Court nominee, officials are also grappling with the uncertain job status of the deputy attorney general.

Sept. 24

republican elephant logo

Roll Call, Mitch McConnell Reaffirms Vow for Senate to Vote on Kavanaugh, Niels Lesniewski, Sept. 24, 2018. Nothing, it seems, could keep the majority leader from giving the Supreme Court nominee a floor vote. Senate Majority Leader Mitch McConnell has not heard anything that should slow confirmation of Judge Brett Kavanaugh to the Supreme Court, pledging to push ahead.

mitch mcconnell2“Judge Kavanaugh will be confirmed,” McConnell, left, said on the Senate floor. He was echoing comments he made Friday, before revelations of additional accusations of sexual assault were leveled at Kavanaugh on Sunday.

The Kentucky Republican started with a fiery opening speech blasting the handling of allegations against President Donald Trump’s Supreme Court nominee as a “smear campaign” Monday — just a prelude to Thursday’s main event, the hearing where the Senate Judiciary Committee will hear from both Kavanaugh and one of his accusers, Christine Blasey Ford.

Palmer Report, Opinion: What did they know about Brett Kavanaugh and when did they know it? Bill Palmer, Sept. 24, 2018. This evening we learned, thanks to Ronan Farrow and Jane Mayer of the New Yorker, that unnamed “Senior Republican staffers” became aware last week that their Supreme Court nominee Brett Kavanaugh had a second accuser named Deborah Ramirez. We also know that in response, the GOP decided to push harder to advance the confirmation process even more quickly, in the hope of confirming him before Ramirez’s accusations could become public.

It leads to a crucial question: which Republican Senators knew about this, and when did they know it?

Over the past several days we’ve all seen Senate Judiciary Committee Chairman Chuck Grassley, as well as committee members Orrin Hatch and Lindsey Graham, publicly try to push Dr. Christine Blasey Ford into testifying as soon as humanly possible. They were demanding she testify on Monday. When she said she couldn’t make it there before Thursday, they then demanded that she testify on Wednesday.

While this was going on, Palmer Report pointed out that the Republicans were so afraid of the Kavanaugh nomination imminently slipping away, they were literally afraid to give Ford one more day; we just didn’t know specifically why. Now we do. Certain Republican Senators knew about Ramirez, and they knew she could go public at any minute, and susan collins lisa murkowski 150x150they were racing against time.

So here’s the question. Did the entire GOP Senate know about Ramirez, or were certain GOP Senators like Grassley and Hatch trying to keep this information from potential “no” votes in their own party, such as Susan Collins and Lisa Murkowski? (The two are shown on the adjoining photos, with Collins at right.)

ny times logoNew York Times, Brett Kavanaugh, Facing New Allegations, Vows He Will Not Withdraw, Sheryl Gay Stolberg, Sept. 24, 2018. Judge Brett M. Kavanaugh, facing mounting allegations of sexual impropriety and growing doubts over his confirmation to the Supreme Court, vowed on Monday to fight the “smears,” saying he will not withdraw his nomination.

“These are smears, pure and simple. And they debase our public discourse,” he wrote in a letter to the senior Republican and Democrat on the Senate Judiciary Committee. “But they are also a threat to any man or woman who wishes to serve our country. Such grotesque and obvious character assassination — if allowed to succeed — will dissuade competent and good people of all political persuasions from service.”

“I will not be intimidated into withdrawing from this process,” he continued. “The coordinated effort to destroy my good name will not drive me out. The vile threats of violence against my family will not drive me out. The last-minute character assassination will not succeed.”

[Read Judge Kavanaugh’s letter.]

Protesters against Supreme Court nominee Brett Kavanaugh and police gather in the Russell Senate Office Building on Sept. 24, 2018 (ABC News photo by Brad Fulton via Twitter)

Protesters against Supreme Court nominee Brett Kavanaugh and police gather in the Russell Senate Office Building on Sept. 24, 2018 (ABC News photo by Brad Fulton via Twitter)

washington post logoWashington Post, 128 arrested after anti-Kavanaugh protest on Capitol Hill, Justin Wm. Moyer, Sept. 24, 2018. Protests Monday against the confirmation of Judge Brett M. Kavanaugh on Capitol Hill ended with 128 arrests, authorities said.

Winnie Wong, a liberal activist and senior adviser to the Women’s March, said one protest began on the steps of the Supreme Court around 8:30 a.m. before moving to the office of Sen. Susan Collins (R-Maine), who some believe can be persuaded to vote against Kavanaugh.

After some demonstrators shared stories of sexual assault, about two dozen were arrested outside Collins’s office, Wong said, before protesters moved on to the office of Sen. Jeff Flake (R-Ariz.), a critic of President Trump who is retiring and is seen by some as another possible “no” vote on the nominee.

The protest eventually moved to the rotunda of the Russell Senate Office Building. Women in Yale University sweatshirts — Kavanaugh attended law school there — shouted, “We believe the women.”

“This is a group effort led by seasoned activists and organizers,” Wong said. “We are close to victory.”

Ady Barkan, an activist who has amyotrophic lateral sclerosis and was among those arrested, said protests would continue until Kavanaugh withdrew. “The fact that we are going to win and that Kavanaugh will not be confirmed is proof of how important it is to always fight even when people say there is no chance of winning,” he said.

Sept. 23

Roll Call, Kavanaugh Has Bumpy Week Ahead as Two More Women Come Forward, Todd Ruger, Sen. Dianne Feinstein calls for stop to the confirmation process. Sept. 23, 2018.

Michael Avenatti, the lawyer who rose to fame by aggressively taking on President Donald Trump on behalf of his client Stormy Daniels, tweeted that he had another woman with an allegation who will be demanding that Kavanaugh’s nomination be withdrawn:

“We are aware of significant evidence of multiple house parties in the Washington, D.C., area during the 1980s” during which Kavanaugh and others “would participate in the targeting of women with alcohol/drugs in order to allow a ‘train’ of men to subsequently gang rape them,” Avenatti wrote. Avenatti said he would provide additional evidence in the coming days.

dianne feinsteinSen. Dianne Feinstein of California, right, the committee’s top Democrat, wrote a letter to Grassley on Sunday asking to stop the confirmation process.“

I also ask that the newest allegations of sexual misconduct be referred to the FBI for investigation, and that you join our request for the White House to direct the FBI to investigate the allegations of Christine Blasey Ford as well as these new claims,” Feinstein said.

Details below.

ny times logoNew York Times, Christine Blasey Ford Reaches Deal to Testify at Kavanaugh Hearing, Sheryl Gay Stolberg, Sept. 23, 2018. The woman who has accused Judge Brett M. Kavanaugh of sexually assaulting her when they were teenagers has committed to testify before the Senate Judiciary Committee on Thursday, her lawyers said on Sunday. The lawyers said some details — including whether an outside lawyer will question her — still needed to be resolved, but that those issues would not impede holding a hearing.

christine blasey ford headshot croppedThe agreement, reached after an hourlong negotiating session Sunday morning between the lawyers and committee aides, is the latest step in a halting process toward a potentially explosive hearing that will pit the woman, Christine Blasey Ford, against Judge Kavanaugh, President Trump’s second nominee to the Supreme Court. On Saturday, the two sides reached a tentative agreement for Dr. Ford, shown right in a file photo, to appear on Thursday.

The on-again, off-again talks — with an appointment to the nation’s highest court in the balance — have consumed official Washington, and thrown confirmation proceedings for Judge Kavanaugh, who has vigorously denied Dr. Ford’s allegations, into turmoil. Until last week, Judge Kavanaugh’s confirmation seemed all but assured; that is no longer the case.

A few sticking points between the two sides remain, according to people familiar with the talks. One is who will testify first, Dr. Ford or Judge Kavanaugh. Republicans have rejected the idea that the judge would appear first. But perhaps the biggest sticking point is whether senators on the Judiciary Committee will question Dr. Ford themselves, or use an outside lawyer or a committee aide, most likely a woman.

The New Yorker, Senate Democrats Investigate a New Sexual-Misconduct Allegation Against Brett Kavanaugh, Ronan Farrow (shown at right) and Jane Mayer, Sept. 23, 2018. Deborah Ramirez, a Yale new yorker logoclassmate of the Supreme Court nominee, has described a dormitory party gone awry and a drunken incident that she wants the F.B.I. to investigate.

As Senate Republicans press for a swift vote to confirm Brett Kavanaugh, President Trump’s nominee to the Supreme Court, Senate Democrats are investigating a new allegation of sexual misconduct against Kavanaugh. The claim dates to the 1983-84 academic school year, when Kavanaugh was a freshman at Yale University.

The offices of at least four Democratic senators have received information about the allegation, and at least two have begun investigating it. Senior Republican staffers also learned of the allegation last week and, in conversations with The New Yorker, expressed concern about its potential impact on Kavanaugh’s nomination. Soon after, Senate Republicans issued renewed calls to accelerate the timing of a committee vote. The Democratic Senate offices reviewing the allegations believe that they merit further investigation.

The woman at the center of the story, Deborah Ramirez, who is fifty-three, attended Yale with Kavanaugh, where she studied sociology and psychology. Later, she spent years working for an organization that supports victims of domestic violence.

The New Yorker contacted Ramirez after learning of her possible involvement in an incident involving Kavanaugh. For Ramirez, the sudden attention has been unwelcome, and prompted difficult choices.

After six days of carefully assessing her memories and consulting with her attorney, Ramirez said that she felt confident enough of her recollections to say that she remembers Kavanaugh had exposed himself at a drunken dormitory party, thrust his penis in her face, and caused her to touch it without her consent as she pushed him away. Ramirez is now calling for the F.B.I. to investigate Kavanaugh’s role in the incident. “I would think an F.B.I. investigation would be warranted,” she said.

Palmer Report, Opinion: Deborah Ramirez accuses Brett Kavanaugh of sexual misconduct – and a third accuser is on the way, Bill Palmer, Sept. 23, 2018. Deborah Ramirez is accusing Supreme Court nominee Brett Kavanaugh of sexual misconduct toward her when they were students at Yale, in a new expose published tonight by Ronan Farrow and Jane Mayer in the New Yorker.

This comes shortly after Dr. Christine Blasey Ford formally agreed to testify before the Senate about her attempted rape accusation against Kavanaugh. And in a sign that the floodgates are open, a third woman is now also seeking to testify to the Senate about Kavanaugh.

michael avenatti sketchYesterday, Michael Avenatti, shown at right, hinted that additional accusers were about to come forward against Kavanaugh. This evening he tweeted that he had retained an unnamed woman as a client, and that she wanted to testify to the Senate about Kavanaugh. When the New Yorker story broke tonight, many observers mistakenly assumed that this was what Avenatti was talking about. But then Avenatti tweeted that his client is not Ramirez.

This means we’re talking about three different women coming forward against Brett Kavanaugh – and the night is still young. Does anyone still believe Mitch McConnell’s claim that he has the votes to confirm this guy?

brett kavanaugh fox poll sept 22 2018

fox news logo SmallFox News, Fox News Poll: Record number of voters oppose Kavanaugh nomination, Dana Blanton, Sept. 23, 2018. Voter support for Brett Kavanaugh’s confirmation to the U.S. Supreme Court is down in the wake of Christine Ford’s assault allegations, as more believe her than him.

Currently, 40 percent of voters would confirm Kavanaugh, while 50 percent oppose him, according to a Fox News poll. Last month, views split 45-46 percent (August 19-21).

washington post logoWashington Post, ‘Incredibly frustrated’: Inside the GOP effort to help Kavanaugh survive allegation, Seung Min Kim and Josh Dawsey, Sept. 23, 2018.  In mock questioning sessions, Supreme Court nominee Brett M. Kavanaugh refused to answer some questions that he saw as too personal. The tense preparations underscore the monumental stakes of public testimony from Kavanaugh and Christine Blasey Ford, who has accused him of sexual assault. As hearing looms, senators seem unwilling to budge on Kavanaugh.

Just as he did several weeks ago to prepare for his confirmation hearings for the Supreme Court, Brett M. Kavanaugh was back inside a room at the Eisenhower Executive Office Building — again facing questioners readying him for a high-stakes appearance in the Senate.

This time, the questions were much different. An array of White House aides, playing the role of various senators on the Judiciary Committee, quizzed Kavanaugh last week about his sex life and other personal matters in an attempt to prepare him for a hearing that would inevitably be uncomfortable.

washington post logojennifer rubin new headshotWashington Post, Opinion: If Republicans don’t get answers, Democrats will in 2019, Jennifer Rubin, right, Sept. 23, 2018. Whether or not Judge Brett M. Kavanaugh gets confirmed to the Supreme Court, there will be plenty of serious questions about the confirmation process that require answers. Assuming Kavanaugh appears at a hearing this week, Democrats can interrogate him. Moreover, all of this could be reviewed next year if Democrats win the majority in either house of Congress (and claim the subpoena power).

Democrats may be keen to focus on the apparent skullduggery that transpired. If the inquiry takes place next year, conservative lawyer Ed Whelan, Mark Judge and any other witnesses who should have participated in the process may be called. There is plenty to look into.

• Who came up with the mistaken-identity scheme?• Who was aware of it?• Did someone in the White House approve it?

If this sounds far-fetched, it is because Republicans took the unbelievable step of pressing forward with a nominee against whom there was a credible claim of sexual assault and decided not to conduct a thorough investigation. What is truly far-fetched is putting Kavanaugh on the court with witnesses out there who haven’t been interviewed and potential avenues to investigate. T

here is a reason why we should only put on the court individuals about whom there is no ethical questions whatsoever. The way you insure there are no ethical questions is by completing a thorough investigation. This is a recipe for chaos.

Findings of wrongdoing in the confirmation process itself, if serious enough, are grist for impeachment or professional sanctions. (Only one other Supreme Court justice was impeached, Samuel Chase. He escaped removal in 1805.) There may be other crimes (e.g., witness intimidation, obstruction of justice) committed by third parties or Republicans inside the confirmation process. There may be Senate or White House staff whose conduct warrants their termination.

Sept. 22

Mueller's Job Threatened By Disputed NYT Report?

ny times logoNew York Times, Rosenstein Suggested Secretly Recording Trump and Discussed 25th Amendment, Adam Goldman and Michael S. Schmidt, Sept. 22, 2018 (print edition). The deputy attorney general, Rod J. Rosenstein, shown above in a file photo, suggested last year that he secretly record President Trump in the White House to expose the chaos consuming the administration, and he discussed recruiting cabinet members to invoke the 25th Amendment to remove Mr. Trump from office for being unfit.

Details below.

washington post logoWashington Post, Lawyers for Christine Blasey Ford say she has accepted Senate Judiciary Committee request to testify against Kavanaugh, christine blasey ford headshot croppedWashington Post Staff, Sept. 22, 2018. The Senate Judiciary Committee and lawyers for Ford have been in negotiations for days about whether she would appear before the panel. Ford, shown at right in a file photo, has accused Supreme Court nominee Brett M. Kavanaugh of sexually assaulting her in the 1980s when both were teenagers.

Sen. Charles E. Grassley (R-Iowa), who chairs the Judiciary Committee, had given Ford until 2:30 p.m. to respond to a revised offer to testify at a Wednesday hearing. Her lawyers asked the committee for a call later Saturday to work out other specifics.This is a developing story. It will be updated.

Newsweek, Former Trump Aide Jason Miller Accused of Secretly Administering Abortion Pill, Alexandra Hutzler, Sept. 22, 2018. Miller has since left the White House and is now engaged in a custody battle with A.J. Delgado. In new court filings, Delgado accuses Miller of secretly giving another woman with whom he newsweek logohad an affair an "abortion pill" after she got pregnant.

Former Donald Trump aide Jason Miller has been accused of secretly administering an "abortion pill" to a woman he got pregnant during an affair, new court documents show.

jason millerThe court filing, obtained and reported on by Splinter, alleges that Miller, shown in a file photo below at right, had an affair with a woman he met at a strip club in Orlando, Florida in 2012. As a result of the affair the woman got pregnant, at which point Miller is accused of giving her with an abortion pill without her knowledge or consent. The woman claims that the pill caused her to lose the baby and nearly cost her her life.

The documents allege that the affair happened when Miller was working for a Republican advertising firm Jamestown Associates. He would often bring clients to Rachel's Gentleman's Club in Orlando, where he allegedly met the woman he would later get pregnant. She is only identified in the court filing as "Jane Doe."

The filing goes on to claim that Miller showed up at Jane Doe's apartment with a smoothie in hand.

"Unbeknownst to Jane Doe, the Smoothie contained an abortion pill. The pill induced an abortion, and Jane Doe wound up in a hospital emergency room, bleeding heavily and nearly went into a coma," the document reads.

As a result of the pill the child died and Jane Doe herself was "hospitalized for two days, the abortion pill possibly reacting with potential street drugs in her system at the time she drank the Smoothie."

Miller's attorney denied these allegations, telling Splinter in a statement: “To be clear, there is no validity to the false accusations made in Ms. Delgado’s filing.”

These allegations were made in court filings made by the legal team of A.J. Delgado, Miller's ex-lover who is suing for custody of their son. Delgado began her affair with Miller in October 2016, after he told her he had separated from his wife. But Miller had never separated from his wife and was, in fact, expecting a child with her when Delgado found out that she was pregnant from their affair. Now, Delgado and Miller are locked in a custody battle.

Miller was Trump's spokesman during his 2016 campaign and a member of the president's transition team. When his affair with Delgado was made public, Miller was essentially forced to turn down a job as the White House communications director. Delgado was also a former Trump campaign staffer.

In previous court filings, Delgado has also accused Miller of sexual and physical abuse, which Miller has also denied.

washington post logoWashington Post, Senate panel to give Kavanaugh accuser more time to decide whether to testify, Sean Sullivan, Seung Min Kim and John Wagner, Sept. 22, 2018 (print edition). Earlier Friday, Judiciary Committee Chairman Charles E. Grassley (R-Iowa) set a deadline of 10 p.m. for Christine Blasey Ford to decide whether to testify about her allegation that Supreme Court nominee Brett M. Kavanaugh had sexually assaulted her when they were in high school. But after the deadline passed, Grassley said on Twitter that he "granted another extension" to Ford: "I want to hear her."

washington post logoWashington Post, ‘100 Kegs or Bust’: Kavanaugh friend, Mark Judge, has spent years writing about high school debauchery, Marc Fisher and Perry Stein, Sept. 22, 2018 (print edition). The high-court nominee’s accuser says Mark Judge was there and should have to testify. Judge says he does not remember the party and never saw his buddy behave like that.

As Christine Blasey Ford tells it, only one person can offer eyewitness confirmation of her account of a sexual assault by Supreme Court nominee Brett M. Kavanaugh: Mark Judge, Kavanaugh’s friend and classmate at Georgetown Prep.

Ford says Judge watched Kavanaugh attack her at a high school party in the early 1980s and then literally piled on, leaping on top of her and Kavanaugh. Judge says he does not remember the party and never saw his buddy behave like that. Ford’s legal team has asked the Senate Judiciary Committee to compel Judge to testify.

A review of books, articles and blog posts by Judge — a freelance writer who has shifted among jobs at a record store, substitute teaching, housesitting and most recently at a liquor store — describes an ’80s private-school party scene in which heavy drinking and sexual encounters were standard fare.

Twitter @ChuckGrassley, Grassley Tweets Kavanaugh on extension to accuser, Chuck Grassley (Senate Judiciary Committee chairman and Republican from Iowa), Sept. 21, 2018 (11:42 p.m.). "Judge Kavanaugh I just granted another extension to Dr Ford to decide if she wants to proceed w the statement she made last week to testify to the senate She shld decide so we can move on I want to hear her. I hope u understand. It’s not my normal approach to b indecisive 11:42 PM - 21 Sep 2018."

Sept. 21

washington post logochristine blasey ford high schoolWashington Post, Trump, in overt attack on Kavanaugh accuser, questions her credibility, John Wagner and Seung Min Kim​, Sept. 21, 2018. President Trump contended that Christine Blasey Ford, who has accused Supreme Court nominee Brett M. Kavanaugh of sexually assaulting her when they were teenagers, would have reported the attack to law enforcement if it “was as bad as she says.”

Trump’s tweets came as lawyers for Ford (shown in a high school photo) continued negotiations about conditions under which she might testify before the Senate Judiciary Committee.

washington post logoWashington Post, Kavanaugh accuser open to testifying later next week, dismisses theory of a different attacker, Seung Min Kim, Josh Dawsey and Emma Brown, Sept. 21, 2018 (print edition). A lawyer for Christine Blasey Ford said she “wishes to testify, provided that we can agree on terms that are fair and which ensure her safety.” Brett M. Kavanaugh’s Supreme Court nomination was roiled further by tweets from a friend who named another classmate as Ford’s possible attacker.

Media News: Sinclair Promos For Kavanaugh?

djt boris epshteyn sinclair kavanaugh sept 21 2018 Custom 2

President Trump sat down for an interview with Sinclair’s chief political analyst, Boris Epshteyn, who has never disagreed with the president in his commentary (screenshot).

Media Matters, Opinion: In an interview with Sinclair, Trump touts Kavanaugh’s “unblemished record” and says he thinks he will be confirmed, Pam Vogel, Sept. 21, 2018. Sinclair Broadcast Group, the largest owner and operator of local TV stations in the country, regularly broadcasts pro-Trump propaganda segments created by an ex-Trump staffer into the homes of millions of Americans. And now those segments include an interview with President Donald Trump himself, in which he was given a friendly platform to discuss his continued support of Supreme Court nominee Brett Kavanaugh despite a report that he committed sexual assault.

The media company’s chief political analyst, Boris Epshteyn, has been producing regular commentary segments, called “Bottom Line With Boris,” for Sinclair for more than a year. Epshteyn had previously worked in the Trump White House on the communications team, after doing stints on the Trump inaugural committee and on the Trump campaign. Epshteyn also served as a Trump media surrogate throughout the campaign and first days of the Trump presidency. Epshteyn is personal friends with the president’s sons Eric and Donald Jr., and he has been spotted at Trump International Hotel multiple times, including with Don Jr. in June. He also may or may not have signed a nondisparagement agreement while he was working on the campaign, which could legally prevent him from criticizing Trump.

For a chief political analyst, Epshteyn offers takes that are notably unoriginal. At best, he regurgitates Trump talking points or touts some vague, imaginary bipartisan ideals that involve being nicer to Trump. At worst, he defends the most upsetting, racist things Trump does. In fact, in a recent interview on a National Review podcast, Epshteyn could not think of a single issue about which he had disagreed with the Trump administration in any of his commentary segments. What’s more: These segments ultimately air on an estimated 100 TV news stations under Sinclair’s control, exploiting the trust people have in their local news.

Given the president’s penchant for granting interviews to sycophants, it was only a matter of time before Trump himself made an appearance on "Bottom Line with Boris."

On September 21, Epshteyn shared the first of what will likely be several must-run segments featuring excerpts from his sit-down with the president. This one is focused on Kavanaugh’s nomination to the Supreme Court and professor Christine Blasey Ford’s account of sexual assault by Kavanaugh when they were both in high school. In the segment, Trump largely repeats broad White House talking points about making sure Ford is heard, and then pivots to touting Kavanaugh’s “unblemished record.” Trump also says he believes Kavanaugh will ultimately still be confirmed.

BORIS EPSHTEYN: The nomination of Judge Brett Kavanaugh to the Supreme Court is facing last-minute turmoil over allegations that he committed sexual assault decades ago. I spoke with President Trump about this in a one-on-one, exclusive interview. Here’s what he shared.


PRESIDENT DONALD TRUMP: Well, I think they’ve been very respectful of Dr. Ford, extremely respectful. I think they’re doing the right thing. They want to give her a voice, if she wants to take it. They’re talking now about timing. It’s already been delayed a week. That’s a long time. This is the U.S. Senate we’re talking about.


TRUMP: I can only say this: Let her speak. But Brett Kavanaugh is one of the finest people you’ll ever meet. I think it’s been extremely hard on him and his family. When I look at what’s happening -- here’s a man with an unblemished record, and to be going through this all of a sudden. So I won’t say anything now. All I’m saying is that -- let it play out. Let her have open voice. And let’s see what happens.

This year, Epshteyn has aired interviews with seven other members of the Trump administration, eight Republican congressmen, and Trump lawyer Rudy Giuliani. The appearances include: then-Rep. Ron DeSantis (R-FL), counselor to the president Kellyanne Conway, Trump lawyer Rudy Giuliani, then-EPA Administrator Scott Pruitt, Sen. Rand Paul (R-KY), House Majority Leader Kevin McCarthy (R-CA), White House press secretary Sarah Huckabee Sanders, Housing and Urban Development (HUD) Secretary Ben Carson, Rep. Lamar Smith (R-TX), Sen. Bill Cassidy (R-LA), Vice President Mike Pence, Rep. Francis Rooney (R-FL), Sen. Orrin Hatch (R-UT), acting EPA Administrator Andrew Wheeler, Council of Economic Advisers Chair Kevin Hassett, and Rep. Sean Duffy (R-WI). DeSantis, McCarthy, Rooney, and Duffy are all on ballots this year.

djt brett kavanaugh family 7 9 18 Small

President Trump introduces U.S. Circuit Judge Brett Kavanaugh, shown with family, as his nominee to the U.S. Supreme Court on July 9, 2018 (White House photo)

Center for American Progress, Opinion: Kavanaugh’s Credibility Chasm, Jake Faleschini and Jesse Lee, Sept. 21, 2018. Amid a crisis in Judge Brett Kavanaugh’s Supreme Court nomination process, new reports suggest that President Trump’s nominee may have been personally involved in a public relations effort to shift blame for sexual assault allegations made against him onto another specific individual with unsubstantiated speculation from an ally.

This alone would demonstrate a deep breach of integrity and credibility and would be disqualifying in itself for a position on the highest court in the land. Unfortunately, it also aligns with an entire career using dishonest tactics and statements to advance his personal ambition.

In Judge Brett Kavanaugh’s first words on the national stage as a Supreme Court nominee, he made two plainly false statements in quick succession. In a vacuum, they might be dismissed as overly effusive pleasantries; in fact, they were part of a decades-long pattern of defaulting toward deception whenever useful.

“Mr. President, thank you. Throughout this process, I’ve witnessed firsthand your appreciation for the vital role of the American judiciary,” Kavanaugh stated. This immediately stood as a refutation of Trump’s previous nominee Neil Gorsuch, who had in fact condemned Trump’s well-known, ruthless attacks on the judiciary, reportedly leaving Trump outraged. Kavanaugh was making clear there that he would offer no such dissent. In fact, Kavanaugh later refused to echo Gorsuch’s criticism of Trump in his own hearing.

Later in his initial statement, Kavanaugh said, “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.” Again, this claim is ridiculous on its face and is reminiscent of early Trump Cabinet meetings where attendees would heap superlative praise upon Trump. But it also spoke to a deeper deception: In fact, Trump had explicitly promised to choose his nominee off of a pre-approved list from conservative advocacy groups, a list to which Kavanaugh’s name had mysteriously been added just months before.

More generally, though, Kavanaugh’s statement shows he opts to say what is best in the moment in order to advance his career. This is even if those statements were objectively — even obviously — misleading. However, this is no new tactic for Kavanaugh. As shown below, this has been a hallmark of his entire career.

  • Leaking information for Ken Starr
  • Accessing stolen documents
  • Warrantless wiretapping
  • Judicial Nominations
  • Sexual harassment allegations against Judge Alex Kozinski
  • Roe v. Wade
  • Presidential Power

Kavanaugh began his career as a political operative willing to use whatever deceptive means necessary — from leaking in the special counsel’s office to dealing with stolen documents in court fights while in the White House. Worse than that, though, when he attempted to transition into a career in the judicial branch, he neither changed his ways nor owned up to his past behavior. Instead, he repeatedly misled the Senate about his prior deceptions, from one confirmation hearing to the next.

Kavanaugh may have rightly believed that, with the Senate controlled by other partisan Republicans, lying and misconstruing facts regarding his record would have no consequence. Indeed, Senate Republicans have blocked any review of the vast majority of his record, so this list of false and misleading statements represents only a small portion of the total.

But, as his Supreme Court confirmation process comes to a head — hinging precisely on whether his denials of credible accusations against him should be believed — Kavanaugh’s record of almost casual deception has caught up with him. The American people simply have no reason to believe him.

Sept. 20

washington post logojennifer rubin new headshotWashington Post, Opinion: Republicans, be forewarned: Kavanaugh’s accuser has options, Jennifer Rubin, right, Sept. 20, 2018. Trump, whom a flock of women has accused of harassment and assault, and the all-male Republican contingent on the Senate Judiciary Committee might think they have Christine Blasey Ford cornered. The reality is that she has many options, some of which are far more dangerous to Republicans than what she has demanded, namely an FBI investigation.

Ford might choose to appear on Monday, and make a powerful opening statement accusing Republicans of running a sham investigation. Committee Chairman Charles Grassley (R-Iowa) has figured out it would be a good idea to interview her in advance of Monday’s hearings, but the staffers conducting the interview would be unlikely to have the ability or the will to follow up on investigative leads.

Ford can use the hearing to put the senators, who have behaved shabbily, on defense.

republican elephant logoFord has another option: Hold a news conference with her own experts and make the case directly to the American people. She can sit down for an interview with a respected TV journalist. She can say whatever she wants, make certain that experts are heard and even recount the much more extensive investigative efforts undertaken when Hill stepped forward. To make her case to the American people and convince them that she is sincere, honest and credible, Ford doesn’t need the Senate.

Ford also might have the ability to go to local police to investigate if the White House refuses to activate the FBI. The Hill reports: “Can Brett Kavanaugh be investigated for an attempted rape he allegedly committed over three decades ago? In Maryland, it’s entirely possible under the law, according to some experts.

washington post logoWashington Post, ‘These are the stories of our lives’: Prep school alumni hear echoes in assault claim, Joe Heim, Sept. 20, 2018 (print edition). Lettina Lanyi remembers. It was 1986, and she was in eighth grade.

christine blasey ford high schoolLanyi has thought about that night often since Sunday, when Christine Blasey Ford (shown at right in a high school photo) publicly accused Supreme Court nominee Brett M. Kavanaugh of sexually assaulting her when she was a 15-year-old student at Holton-Arms School and he was a 17-year-old student at Georgetown Prep. She has thought about stories of male entitlement and drunken sexual assault she heard from classmates while she was a student at Prep’s Bethesda neighbor, Stone Ridge of the Sacred Heart, and the many more stories she has heard in the years since their graduation.

There was a lot of shame and stigma then if a girl was raped, so girls tried to hide it. They didn’t tell anyone,” Lanyi said. “The term ‘date rape’ wasn’t something that even existed then. So if it happened, it was always kind of the girl’s fault.”

Lanyi’s recollection of a private school culture suffused by alcohol and drugs — and frequent if unreported sexual assault or misbehavior — is widely shared by students who attended those schools in the 1980s. It was, they recalled, an era marked by excess and illegality that went widely unchecked by parents and school leaders who were unaware or uninterested in cracking down on the behavior.

On Tuesday, Lanyi helped launch an online letter of support for Ford from women and men who grew up in the upper Northwest Washington neighborhoods and Maryland suburbs that fed into the exclusive private schools and country clubs during the same era that Ford and Kavanaugh attended their schools.

brett kavanaugh 1983 yearbookThe letter’s message to Ford is unambiguous: “We believe you. Each one of us heard your story and not one of us was surprised. These are the stories of our lives and our friends’ lives.” More than 300 people signed the letter, including graduates of Stone Ridge, Georgetown Prep, Georgetown Visitation Preparatory School, Gonzaga and many others.

A similar letter of support for Ford from Holton-Arms graduates bore 925 signatures Wednesday, including from actress Julia Louis-Dreyfus, Class of 1979. The letters came in response to a missive Friday signed by 65 women supporting Kavanaugh (shown in his 1983 yearbook photo) after the assault allegations emerged but before Ford came forward.

“We are women who have known Brett Kavanaugh for more than 35 years and knew him while he attended high school between 1979 and 1983. For the entire time we have known Brett Kavanaugh, he has behaved honorably and treated women with respect,” read the letter, from women who attended schools including Visitation, Stone Ridge and Holton-Arms.

This story is based on interviews with two dozen former students, many of whom asked not to be identified because of how tightly knit and powerful the alumni from those schools are, and because they fear retribution or harassment for speaking out on the allegations engulfing Kavanaugh’s nomination.

washington post logoWashington Post, Kavanaugh accuser won’t testify Monday but is open to doing so later next week, Seung Min Kim, John Wagner and Emma Brown, Sept. 20, 2018. ​In an email to the Senate Judiciary Committee, a lawyer for Christine Blasey Ford said she wanted to negotiate conditions for her testimony, saying, that she “wishes to testify, provided that we can agree on terms that are fair and which ensure her safety.”

Roll Call, Judiciary Staffer’s Tweets Fuel Fight Over Kavanaugh Accuser, Todd Ruger, Sept. 20, 2018. ‘Unfazed and determined. We will confirm Judge Kavanaugh,’ committee’s chief staffer says.

Amid a pitched partisan battle over how the Senate handles an allegation that Supreme Court nominee Brett Kavanaugh sexually assaulted a woman decades ago as a teenager, liberal groups on Thursday seized on comments from a Judiciary Committee staffer to paint the process as a sham.

Mike Davis, the committee’s chief staffer for nominations, tweeted twice overnight about his key role in the committee’s review of Christine Blasey Ford’s allegation, as well as criticism of Ford’s attorneys and his desired outcome of the process.

“Unfazed and determined. We will confirm Judge Kavanaugh. #ConfirmKavanaugh #SCOTUS,” Davis tweeted at 11 p.m. Wednesday.

wayne madsen new headshotWayne Madsen Report (WMR), Opinion: Kavanaugh and Georgetown Prep: Pedophilia acceptance, Wayne Madsen, Sept. 20, 2018 (subscription required, with excerpt below by permission). Investigative reporter and author Wayne Madsen, right, is a former Navy intelligence officer who was appointed to be a temporary FBI special agent during a period in the 1980s to help convict his Navy commanding officer on pedophilia charges.

Brett Kavanaugh, Donald Trump's dubious nominee for the Supreme Court, not only faces questions about his views on a woman's right to choose her own health decisions and his own questionable past treatment of women, but his elite high school.

Georgetown Preparatory High School in North Bethesda, Maryland has been a hotbed for Roman Catholic sex abuse of minors. As a member of the Supreme Court, Kavanaugh would become the court's fifth Catholic judge. His decisions on cases involving the cover-up of child sex abuse by religious organizations and politically powerful individuals could dictate for decades to come how the nation deals with the issue of sex abuse of minors.

Mueller Probe: Election Subversion

ny times logorobert mueller full face fileNew York Times, Investigation: The Plot to Subvert an Election, Scott Shane and Mark Mazzetti, Sept. 20, 2018 (print edition). For two years, Americans have tried to absorb the details of the 2016 interference by Russia: hacked emails, social media fraud, possible espionage — and President Trump’s claims that it’s all a hoax. We unravel the story so far. Special Counsel Robert Mueller III is shown at right.

washington post logoWashington Post, Trump feels angry, unprotected amid mounting crises, Ashley Parker and Philip Rucker, Sept. 20, 2018 (print edition). Publicly, President Trump is going through the ordinary motions of being president. But behind the scenes, he is confronting broadsides from every direction — legal, political and personal.

Kavanaugh Accuser

ny times logoNew York Times, From the Anonymity of Academia to the Center of a Supreme Court Confirmation, Elizabeth Williamson, Rebecca R. Ruiz, Emily Steel, Grace Ashford and Steve Eder, Sept. 20, 2018 (print edition). Dr. Blasey, a researcher and statistician, was reluctant to come forward with her allegation that Judge Kavanaugh sexually assaulted her.

christine blasey fordThe text message from Christine Blasey Ford, shown left in a file photo, this summer worried her college best friend, Catherine Piwowarski. Over their years of friendship — as roommates, bridesmaids and parents on opposite coasts — Dr. Blasey wanted to know, had she ever confided that she had been sexually assaulted in high school?

No, Ms. Piwowarski said she texted back, she would have remembered that, and was everything O.K.? Dr. Blasey didn’t want to speak in detail quite yet, her friend recalled her responding. “I don’t know why she was asking that or what it ultimately meant or didn’t mean,” Ms. Piwowarski said in an interview, but she remembers thinking that the question betrayed deep turmoil.

ny times logoNew York Times, Dr. Blasey has been the target of widespread social media disinformation since she came forward. We debunk five viral rumors, Kevin Roose, Sept. 20, 2018 (print edition). Just minutes after Christine Blasey Ford, a California-based psychologist, went public with accusations of teenage sexual assault against Judge Brett M. Kavanaugh, the Supreme Court nominee, internet investigators began combing her past for clues about her possible motives, and trying to cast doubt on the veracity of her claims.

bill walkerState of Alaska, Alaska's Governor and Lieutenant Governor oppose Kavanaugh's confirmation, Sept. 20, 2018. Governor Bill Walker, right, and Lieutenant Governor Byron Mallott [Independents] on Thursday offered the following statement:

We oppose the confirmation of Brett Kavanaugh to the U.S. Supreme Court. One of our top priorities as Governor and Lieutenant Governor is expanding affordable healthcare access to all Alaskans. We supported increasing the number of people eligible to receive health insurance by increasing the pool of those who have access to Medicaid, and we have also championed protections for Alaskans with pre-existing health conditions.

Another priority of our administration is protecting the rights of working Alaskans. Mr. Kavanaugh’s record does not demonstrate a commitment to legal precedent that protects working families. Key aspects of our nation’s healthcare and labor laws may be at risk if Mr. Kavanaugh receives a lifetime appointment. brett kavanaughMr. Kavanaugh’s appointment could also jeopardize the Indian Child Welfare Act, Alaska Native Claims Settlement Act, and other laws that enable tribal self-determination due to his overly narrow view of the relationship between federal and tribal governments. Alaska is home to 227 tribes, nearly half of all tribes in our nation. Finally, we believe a thorough review of past allegations against Mr. Kavanaugh, left, is needed before a confirmation vote takes place. Violence against women in Alaska is an epidemic. We do not condone placing someone into one of our nation’s highest positions of power while so many key questions remain unanswered.

ny times logoNew York Times, Evangelical Leaders Are Frustrated at G.O.P. Caution on Kavanaugh Allegation, Jeremy W. Peters and Elizabeth Dias, Sept. 20, 2018. Ralph Reed, the social conservative leader, said if Senate Republicans fail to confirm Judge Brett M. Kavanaugh for the Supreme Court, “it will be very difficult to motivate and energize faith-based and conservative voters in November.”

bill yeomans afj cropped CustomAlliance for Justice, Opinion: 8 Reasons to Expect Kavanaugh’s Nomination to Fail, Bill Yeomans, right, Sept. 20, 2018. The accusation by Dr. Christine Blasey Ford that a drunken 17-year old Brett Kavanaugh attempted to rape her has imperiled Kavanaugh’s Supreme Court nomination. Here are eight reasons why Judge Kavanaugh’s nomination may fail.

1. Dr. Blasey Ford’s credibility is virtually unassailable.

washington post logoWashington Post, Kavanaugh’s unlikely story about Democrats’ stolen documents, Salvador Rizzo, Sept. 20, 2018 (print edition). As a White House lawyer, Kavanaugh received insider information taken from Democrats’ files but has repeatedly said he never suspected that his source was stealing it. These claims defy logic.

Trump Watch

abc news logoABC News, Michael Cohen spoke to Mueller team for hours; asked about Russia, possible collusion, pardon: Sources, George Stephanopoulos, Eliana Larramendia and James Hill, Sept. 20, 2018. President Donald Trump’s former personal attorney, Michael Cohen, has participated over the last month in multiple interview sessions lasting for hours with investigators from the office of special counsel, Robert Mueller, sources tell ABC News.
Interested in Russia Investigation?

Add Russia Investigation as an interest to stay up to date on the latest Russia Investigation news, video, and analysis from ABC News.

The special counsel’s questioning of Cohen, one of the president’s closest associates over the past decade, has focused primarily on all aspects of Trump's dealings with Russia -- including financial and business dealings and the investigation into alleged collusion with Russia by the Trump campaign and its surrogates to influence the outcome of the 2016 presidential election, sources familiar with the matter tell ABC News.

Sept. 19

'This Incident Did Happen'

christine blasey ford high schoolThe New Civil Rights Movement, 'This Incident Did Happen': Woman Says She Knew Kavanaugh and 'Many of Us Heard About It in School,' David Badash, Sept. 19, 2018. Christine Blasey Ford's high school who have signed on to a letter supporting her has come forward to say Brett Kavanaugh did sexually assault Christine Blasey in high school. Dr. Ford is shown at right in high school. She says she was 15 at the time she was attacked.

In postings to Facebook and Twitter, which she says she has since deleted because the media is contacting her and she is unsure of how to move forward, Christina King writes that at the time, 'many of us heard about it in school and Christine's recollection should be more than enough for us to truly, deeply know the accusation is true.'

King, who has also been identified as Christina King Miranda, says drinking in those days at these private Catholic prep schools was 'out of control.'

See also, OpEdNews, 'This Incident Did Happen': Woman Says She Knew Kavanaugh and 'Many of Us Heard About It in School, Rob Kall (Founder and publisher of prominent progressive site OpEdNews that has extensive social media capabilities), Sept. 19, 2018. Quick Link: 'This Incident Did Happen.'

Sept. 18

cnn logoCNN, Ford wants FBI investigation before testifying, Sophie Tatum, Sept. 18, 2018. The woman accusing Supreme Court nominee Brett Kavanaugh of sexual assault says the FBI should investigate the incident before senators hold a hearing on the allegations.

In a letter addressed to Senate Judiciary Chairman Chuck Grassley of Iowa, and obtained by CNN's "Anderson Cooper 360," Christine Blasey Ford's attorneys argue that "a full investigation by law enforcement officials will ensure that the crucial facts and witnesses in this matter are assessed in a non-partisan manner, and that the Committee is fully informed before conducting any hearing or making any decisions."

The letter from Ford's lawyers notes that despite receiving a "stunning amount of support from her community," Ford has also "been the target of vicious harassment and even death threats" and has been forced to leave her home.

"We would welcome the opportunity to talk with you and Ranking Member Feinstein to discuss reasonable steps as to how Dr. Ford can cooperate while also taking care of her own health and security," the letter from Ford's lawyers said.

"What we're saying is there should be an investigation because that's the right thing to do," Ford's attorney Lisa Banks told Cooper.

"She is prepared to cooperate with the committee and with any law enforcement investigation," she added.

The letter comes after a day of uncertainty about whether the hearing scheduled for Monday would even take place, as Republicans continued to emphasize their repeated efforts to reach out to Ford.

Democrats have pushed back on the hearing. All 10 Democrats on the Senate Judiciary Committee sent a letter on Tuesday to FBI Director Christopher Wray and White House counsel Don McGahn arguing that the FBI should conduct an investigation prior to a hearing.

.senate gop judiciary

Republican U.S. Senate Judiciary Committee Members

Yahoo News, Analysis: Republican men — and not a single GOP woman — will be Christine Blasey Ford's interrogators on the Senate Judiciary Committee, Alexander Nazaryan, Sept. 18, 2018. Next week, Christine Blasey Ford will likely face intense questioning from Republicans on the Senate Judiciary Committee about the truthfulness of her accusations against Brett Kavanaugh, the Supreme Court nominee, who she says attempted to rape her during a party in the 1980s. Her turn on Capitol Hill could decide Kavanaugh’s suddenly uncertain fate, as well as the Supreme Court’s direction for a generation.

republican elephant logoFord will face questions from the 11 Republicans on the Senate Judiciary Ford will face questions from the 11 Republicans on the Senate Judiciary Committee, all of them men, with an average age of 62. (The chairman, Chuck Grassley of Iowa, the second-oldest sitting senator, is 85.) In the committee’s 202-year history, it has not had a single Republican woman. Four of the 10 Democrats are women, including ranking member Sen. Dianne Feinstein of California, who is a few months older than Grassley. The committee has never been chaired by a woman.

The spectacle of Ford, 51, being interrogated about her sexual history by older men could present an uncomfortable sight that the White House may take great pains to avoid. The outrage over that discrepancy, however, is already building. “In the year 2018, a group of white men has essentially complete control over lifetime nominations to an entire branch of government,” tweeted Robert Reich, the former Labor secretary and current Berkeley professor. The message was retweeted more than 2,000 times

In the last 40 years, use of the judiciary to advance ideological goals has rendered the process of nominating judges highly political, with nominees evaluated on a narrow range of cultural issues, notably abortion, gun control and, until recently, gay marriage. That has tended to turn the Senate Judiciary into a hotbed of assertive ideologues, including, recently, Jeff Sessions and Ted Cruz. GOP women have made their contributions elsewhere, effectively ceding judicial nominations to their male counterparts.

chuck grassley oRoll Call, Grassley Says Monday Hearing Not Likely Without Kavanaugh Accuser, John T. Bennett, Sept. 19, 2018. Senate Judiciary Chairman Charles E. Grassley, right, said Wednesday a planned Monday hearing on sexual assault allegations against Supreme Court nominee Brett Kavanaugh would likely not go on without accuser Christine Blasey Ford.

Asked about Ford saying she wouldn’t appear on Monday, the chairman indicated it would not go on without the accuser present because the nominee would not know the full scope of allegations against him. Any decision to cancel that session, Grassley said, will be made at the “last” possible minute.

washington post logoWashington Post, Democrats protest plan to limit witnesses at new Kavanaugh hearing, John Wagner, Seung Min Kim and Robert Costa, Sept. 18, 2018. No. 2 Senate Republican sharply questions credibility of Kavanaugh accuser·​The No. 2 Republican in the Senate on Tuesday sharply questioned the credibility of the woman who has accused Judge Brett Kavanaugh of sexual assault, as GOP leaders indicated they will limit witnesses at next week’s hearing to just the Supreme Court nominee and his accuser.

john cornyn o SmallSpeaking to reporters, Sen. John Cornyn (R-Tex.), right, said he was concerned by “gaps” in the account of Christine Blasey Ford, a psychology professor in California, who told The Washington Post in an interview published Sunday that Kavanaugh drunkenly pinned her to a bed on her back, groped her and put his hand over her mouth at a house party in the early 1980s when the two were in high school.

“The problem is, Dr. Ford can’t remember when it was, where it was, or how it came to be,” Cornyn told reporters at the Capitol late Tuesday morning.

When asked whether he was questioning the accuser’s account — which Kavanaugh has repeatedly denied — Cornyn said, “There are some gaps there that need to be filled.”

His comments came shortly after Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) outlined a plan to limit testimony at Monday’s planned hearing to that provided by Kavanaugh and Ford — which brought cries of protest from Democrats.

They insisted that other witnesses also be called, including Mark Judge, a Kavanaugh friend who Ford said witnessed the assault. “What about other witnesses like Kavanaugh’s friend Mark Judge?” ranking Democrat Dianne Feinstein of California said in a statement. “What about individuals who were previously told about this incident? What about experts who can speak to the effects of this kind of trauma on a victim? This is another attempt by Republicans to rush this nomination and not fully vet Judge Kavanaugh.”

Speaking to reporters later, Grassley defended his plan. “We’ve had two people that want to tell their story and that’s what we’re gonna do,” he said. Pressed about the precedent of the Hill hearing, Grassley said: “You’re talking about history. We’re not looking back. We’re looking forward.”

Kavanaugh was at the White House on Tuesday for a second day in a row, but Trump said he has not spoken to him.

ny times logoNew York Times, Kavanaugh and His Accuser Will Both Testify Monday, Sheryl Gay Stolberg and Julie Hirschfeld Davis, Sept. 18, 2018 (print edition). The chairman of the Senate Judiciary Committee, under mounting pressure from senators of his own party, will call President Trump’s Supreme Court nominee, Judge Brett M. Kavanaugh, and the woman who has accused him of sexual assault before the committee on Monday for extraordinary public hearings just weeks before the midterm elections.

chuck grassley oSenator John Kennedy, Republican of Louisiana, told reporters Monday afternoon that the chairman, Senator Charles E. Grassley, right, Republican of Iowa, told senators there would be an “opportunity” for senators to hear from Judge Kavanaugh and his accuser, Christine Blasey Ford, in a public setting where senators would be able to ask questions. Both have said they are willing to testify. A Senate Republican aide confirmed that it would be on Monday, effectively delaying a planned committee vote on Judge Kavanaugh’s nomination, which had been scheduled for this Thursday.

The hearings will set up a potentially explosive public showdown, one that carries unmistakable echoes of the 1991 testimony of Anita Hill, who accused the future Justice Clarence Thomas of sexual harassment in an episode that riveted the nation and ushered a slew of women into public office. They will play out against the backdrop of the #MeToo movement, which has energized Democratic women across the nation.

anita hill 2013 documentary poster

Brandeis University professor Anita Hill, as portrayed in the 2013 documentary "Anita" based on her experiences testifying against future Supreme Court Justice Clarence Thomas

ny times logoNew York Times, Opinion: How to Get the Kavanaugh Hearings Right, Anita Hill, Sept. 18, 2018. The Senate Judiciary Committee has a chance to do better by the country than it anita hill clarence thomas time scandaldid nearly three decades ago.

Select a neutral investigative body with experience in sexual misconduct cases that will investigate the incident in question and present its findings to the committee. Outcomes in such investigations are more reliable and less likely to be perceived as tainted by partisanship. Senators must then rely on the investigators’ conclusions, along with advice from experts, to frame the questions they ask Judge Kavanaugh and Dr. Blasey. Again, the senators’ fact-finding roles must guide their behavior. The investigators’ report should frame the hearing, not politics or myths about sexual assault.

Do not rush these hearings. Doing so would not only signal that sexual assault accusations are not important — hastily appraising this situation would very likely lead to facts being overlooked that are necessary for the Senate and the public to evaluate. That the committee plans to hold a hearing this coming Monday is discouraging. Simply put, a week’s preparation is not enough time for meaningful inquiry into very serious charges.

WUSA (Washington, DC), Brett Kavanaugh high school yearbook raises new questions about Supreme Court nominee, Staff report, Sept. 18, 2018. Brett Kavanaugh's high school yearbook has pages dedicated to each graduating high school senior. Kavanaugh's page includes references to the "Keg City Club" and "100 kegs or bust."

Amid accusations of sexual assault against a woman while in high school, the high school yearbook of Supreme Court nominee Brett Kavanaugh has prompted more questions about his character.

brett kavanaugh flagKavanaugh, shown in a file photo, graduated from Bethesda’s Georgetown Prep high school in 1983.

Washington, D.C.-area attorney Seth Berenzweig received the yearbook from a woman who did not want her name revealed. Berenzweig says she brought it forward after seeing Judge Kavanaugh’s repeated denial of engaging in inappropriate behavior with a then 15-year-old girl at a high school party.

“The question of integrity and character and fitness,” said Berenzweig. “There’s information here that appears to potentially be inconsistent with what the judge said earlier this morning.”

The yearbook has pages dedicated to each graduating high school senior. Kavanaugh’s page includes references to the "Keg City Club" and "100 kegs or bust."

“[He's] someone who apparently may have had a reputation for some heavy drinking,” said Berenzweig. Kavanaugh’s page also includes a reference to the ‘Devil’s Triangle’, one possible interpretation of which is slang for a sexual situation involving two men and a woman.

The allegations against Kavanaugh are that he attempted to sexually assault a woman at a high school party during his junior year. Published reports and the alleged victim’s recollection is that another Georgetown Prep student, and friend of Kavanaugh’s, named Mark Judge was also present in the room during the alleged assault. Lawyer says excerpts from Brett Kavanaugh's high school yearbook raises questions. Judge’s yearbook page includes this quote, “Certain women should be struck regularly, like gongs.” His page also references “100 kegs or bust” and “Alcoholics Unanimous [Founder].”

mark judge twitterRoll Call, Mark Judge, Possible Witness to Alleged Brett Kavanaugh Sexual Assault, Does Not Want to Testify, Niels Lesniewski, Sept. 18, 2018. The third person identified by Christine Blasey Ford as having been present in the room during what she alleged was a sexual assault by Judge Brett Kavanaugh wants no part of the Judiciary Committee proceedings. Mark Judge is shown at right.

washington post logoWashington Post, Trump says he feels ‘badly’ for Kavanaugh: ‘This is not a man who deserves this,’ Seung Min Kim, Robert Costa and John Wagner, Sept. 18, 2018.  President Trump said during a news conference at the White House that he supports the congressional hearing on an allegation that Brett M. Kavanaugh sexually assaulted a woman in high school, because there shouldn't be any doubt about his innocence. Trump also blamed Democrats for not bringing the allegation forward sooner.

Palmer Report, Opinion: Susan Collins just threw a big monkey wrench into the GOP’s Brett Kavanaugh plot, Bill Palmer, Sept. 18, 2018. Even after the Republican leadership announced last night that it was agreeing to delay the Senate Judiciary Committee vote on Supreme Court nominee Brett Kavanaugh, it was clear the GOP was still playing games. This was set up as a rush job in which Kavanaugh and his accuser Dr. Christine Blasey Ford would each quickly testify on Monday before any real investigating could be done. Now Republican Senator Susan Collins has thrown a big monkey wrench into that plan.

susan collins oHere’s what Susan Collins, right, tweeted this afternoon: “I’m writing to the Chairman & RM of Judiciary Cmte respectfully recommending that at Monday’s hearing, counsel for Prof. Ford be allocated time to question Judge Kavanaugh & counsel for the Judge be granted equal time to question Prof. Ford, followed by questions from Senators. Such an approach would provide more continuity, elicit the most information & allow an in-depth examination of the allegations.” Wait, so what is she up to?

She has clearly decided that she wants Monday’s testimony to be something of substance, where Kavanaugh can be grilled by a legal professional in front of the cameras. Collins has to know that Kavanaugh, who has already proven himself to be an inept and self-contradictory witness on various matters, would fare poorly in such a scenario.

Sept. 17

washington post logoWashington Post, Kavanaugh accuser willing to testify, her lawyer says, John Wagner, Sept. 17, 2018. A lawyer for Christine Blasey Ford, the woman who said Judge Brett Kavanaugh assaulted her when the two were in high school, said Monday that Ford is willing to testify about the allegations before the Senate Judiciary Committee.

“She is. She’s willing to do whatever it takes to get her story forth,” lawyer Debra Katz said on NBC’s “Today” show when asked if her client would speak publicly about President Trump’s nominee to the Supreme Court.

Kavanaugh has denied the allegations, which have roiled his confirmation process. The White House indicated Monday that it is continuing to stand by Kavanaugh but expects Ford will offer testimony to the Judiciary Committee.

ny times logoNew York Times, Allegations Against Kavanaugh ‘Will Be Heard,’ Kellyanne Conway Says, Eileen Sullivan, Sept. 17, 2018. President Trump’s counselor said that she had spoken with Mr. Trump and senators and that the accuser “will be heard.”

Roll Call, Kavanaugh Would Testify Against Sexual Assault Allegation, John T. Bennett, Posted Sep 17, 2018. Supreme Court nominee Brett Kavanaugh said Monday he would testify to give his side of the story of an alleged 1982 incident when a California professor says he sexually assaulted her.

“This is a completely false allegation. I have never done anything like what the accuser describes — to her or to anyone,” Kavanaugh said in a statement released by the White House.

“Because this never happened, I had no idea who was making this accusation until she identified herself yesterday. I am willing to talk to the Senate Judiciary Committee in any way the committee deems appropriate to refute this false allegation, from 36 years ago, and defend my integrity.”

The Hill, Alumnae of Kavanaugh accuser’s high school express support for her, Justin Wise, Sept. 17, 2018. Alumnae of Christine Blasey Ford’s high school are circulating a letter to show their support for her, after Ford came forward with sexual misconduct accusations against President Trump’s Supreme Court nominee, Brett Kavanaugh.

“We believe Dr. Blasey Ford and are grateful that she came forward to tell her story,” a draft letter from alumnae of Holton-Arms, a private girls school in Bethesda, Md., reads, as first reported by HuffPost. “It demands a thorough and independent investigation before the Senate can reasonably vote on Brett Kavanaugh’s nomination to a lifetime seat on the nation’s highest court.”

The letter, which says it’s from more than 200 alumnae from classes 1967 through 2018, added that Ford’s allegations about Kavanaugh are “all too consistent with stories we heard and lived while attending Holton.”

“Many of us are survivors ourselves,” it said. HuffPost reported that the letter had received three dozen additional signatures as of Monday morning.The report comes just a day after Ford detailed her allegations against Kavanaugh for the first time to The Washington Post.

Sept. 16

Kavanaugh Accuser Speaks Out

washington post logoWashington Post, Writer of confidential Brett Kavanaugh letter speaks out about her allegation of sexual assault, Emma Brown​, Sept. 16, 2018. Christine Blasey Ford alleges that Kavanaugh attacked her more than three decades ago when they were each in high school, an allegation the Supreme Court nominee has flatly denied.

brett kavanaughEarlier this summer, Christine Blasey Ford wrote a confidential letter to a senior Democratic lawmaker alleging that Supreme Court nominee Brett M. Kavanaugh sexually assaulted her more than three decades ago, when they were high school students in suburban Maryland. Since Wednesday, she has watched as that bare-bones version of her story became public without her name or her consent, drawing a blanket denial from Kavanaugh and roiling a nomination that just days ago seemed all but certain to succeed.

Now, Ford has decided that if her story is going to be told, she wants to be the one to tell it.

Speaking publicly for the first time, Ford said that one summer in the early 1980s, Kavanaugh and a friend — both “stumbling drunk,” Ford alleges — corralled her into a bedroom during a gathering of teenagers at a house in Montgomery County.

While his friend watched, she said, Kavanaugh pinned her to a bed on her back and groped her over her clothes, grinding his body against hers and clumsily attempting to pull off her one-piece bathing suit and the clothing she wore over it. When she tried to scream, she said, he put his hand over her mouth.

“I thought he might inadvertently kill me,” said Ford, now a 51-year-old research psychologist in northern California. “He was trying to attack me and remove my clothing.”

Ford said she was able to escape when Kavanaugh’s friend and classmate at Georgetown Preparatory School, Mark Judge, jumped on top of them, sending all three tumbling. She said she ran from the room, briefly locked herself in a bathroom and then fled the house.

Ford said she told no one of the incident in any detail until 2012, when she was in couples therapy with her husband. The therapist’s notes, portions of which were provided by Ford and reviewed by The Washington Post, do not mention Kavanaugh’s name but say she reported that she was attacked by students “from an elitist boys’ school” who went on to become “highly respected and high-ranking members of society in Washington.” The notes say four boys were involved, a discrepancy Ford says was an error on the therapist’s part. Ford said there were four boys at the party but only two in the room.

Reached by email Sunday, Judge declined to comment. In an interview Friday with The Weekly Standard, before Ford’s name was known, he denied that any such incident occurred. “It’s just absolutely nuts. I never saw Brett act that way,” Judge said. He told the New York Times that Kavanaugh was a “brilliant student” who loved sports and was not “into anything crazy or illegal.”

On Sunday, the White House sent The Post a statement Kavanaugh issued last week, when the outlines of Ford’s account first became public: “I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.”

For weeks, Ford declined to speak to The Post on the record as she grappled with concerns about what going public would mean for her and her family — and what she said was her duty as a citizen to tell the story.

Axios Sneak Peek, What's next: The politics of Kavanaugh's crisis, Jonathan Swan, Sept. 16, 2018. What was previously an allegation of sexual misconduct against Brett Kavanaugh by an unidentified person — without a lot of details or evidence — is now backed by a name, a specific allegation and therapist's notes. A senior Republican official involved in Kavanaugh's confirmation privately admitted to me that they felt queasy when they read The Washington Post story. And there was one sign tonight that these allegations could actually derail Kavanaugh's confirmation to the Supreme Court — which was previously a sure thing.

jeff flake oJeff Flake [the Arizona Republican at right] told the WashPost's Sean Sullivan that the Senate Judiciary Committee should wait to hear more from Kavanaugh's accuser, Christine Blasey Ford: "For me, we can’t vote until we hear more."

Why it matters: Doug Jones' special election victory late last year gave Democrats an extra seat on Senate Judiciary — there are now 11 Republicans and 10 Democrats — meaning that Flake's defection could stall Kavanaugh's confirmation process.

Since the story broke, I've spoken to four sources close to the Kavanaugh confirmation process. All were defiant and sought to raise doubts about the accuser's credibility and the holes in her story — though none were willing to do so on the record. They signaled potential lines of attack: the accuser's Democratic political background, lapses in her memory and the accounts of the 65 women who've known Kavanaugh since high school who've vouched for his character.

washington post logojennifer rubin new headshotWashington Post, Opinion: Kavanaugh’s accuser steps forward, Jennifer Rubin, right, Sept. 16, 2018. If Kavanaugh did what he was accused of and then has lied about it, he cannot be confirmed for the Supreme Court. It is noteworthy he has not denied the allegation under oath. The Senate therefore must bring him back as well as Ford to tell their accounts in public and under oath.

If the allegation is true — and at this point, none of us is in a position to assess credibility — he dare not lie under oath, putting at risk his current seat on the bench. (A far more difficult matter presents itself if Kavanaugh issues less than an absolute denial under oath but argues that this episode was decades old and therefore should not be disqualifying. I find it difficult to believe, however, that he’ll deviate from his initial, complete denial.)

susan collins oThe nomination fortunately does not hang on whether the White House or the vast majority of Senate Republicans behave responsibly, for surely they will not. Here, the two pro-choice Republican senators, Susan Collins, left, of Maine and Lisa Murkowski of Alaska, once more are in the driver’s seat. If they indicate they will not vote to confirm unless and until the matter is investigated, then the nomination stops in its tracks.

To Republicans and the judge himself who may think this is terribly unfair, I have two responses. First, the entire confirmation process has been rushed, incomplete and hampered by the partisan, limited release of relevant documents. Second, it may well be unfair to hear a last-minute allegation, but it would be much more unfair to allow someone who has lied to the American people about an alleged sexual assault to reach the highest court.

U.S. Senate Judiciary Committee Republicans

chuck grassley officialChuck Grassley, Iowa, Chairman, right. Orrin Hatch, UChuck Grassley, Iowa, Chairman.
Orrin Hatch, Utah.
Lindsey Graham, South Carolina.
John Cornyn, Texas.
Mike Lee, Utah.
Ted Cruz, Texas.
Ben Sasse, Nebraska.
Jeff Flake, Arizona.

Roll Call, Three Ways Kavanaugh Nomination Could Play Out After Accuser Speaks, John T. Bennett, Sept. 16, 2018. Female GOP senators could have big say in what happens nextPosted What was an anonymous letter with serious allegations against Supreme Court nominee are now vivid words from an accuser, putting a name and face on the charges and raising new questions about the nomination.

A California professor contends she instantly thought a “stumbling drunk” Kavanaugh might “inadvertently kill” her during a party in the early 1980s while they were in high school, breaking her public silence and handing Republican leaders and the White House tough decisions about what to do next.

“I thought he might inadvertently kill me,” Christine Blasey Ford told the Washington Post in an article that published Sunday afternoon. “He was trying to attack me and remove my clothing.” She also claims Kavanaugh and a friend trapped her in a bedroom during the party, with the high court nominee pinning her on a bed while his friend watched and groping her over her one-piece bathing suit. Ford says she was able to escape without injury.

The 51-year-old Ford first voiced her concerns to California Democratic lawmakers, including Senate Judiciary ranking member Dianne Feinstein, who last week cryptically announced she had referred a letter containing information about Kavanaugh to the FBI. Ford also contacted a Post tip line, but the interview marked the first time she had spoken publicly about the alleged incident.

Judiciary Chairman Charles E. Grassley, R-Iowa, last week teed up a committee vote on Kavanaugh’s confirmation for Thursday as he and Senate Majority Leader Mitch McConnell — and the White House — aim to hold floor votes and have Kavanaugh join the other eight Supreme Court justices by Oct.1.

But Ford’s public allegations could alter those plans. Here are three ways the nomination could play out after the accuser’s first public remarks.Kavanaugh drops out/White House pulls nomination

Sept. 15

ny times logoNew York Times, New Kavanaugh Disclosure Shows Little Sign of Impeding His Nomination, Carl Hulse, Sept. 15, 2018. Sudden new revelations in Supreme Court confirmation fights are not new. Anita Hill’s accusations of sexual harassment against Clarence Thomas surfaced after his initial hearings had concluded. Justice Neil M. Gorsuch, President Trump’s first nominee to the court, faced claims that he had plagiarized parts of his book just as his nomination headed toward a Senate floor vote.

Sept. 14

new yorker logoNew Yorker, A Sexual-Misconduct Allegation Against the Supreme Court Nominee Brett Kavanaugh Stirs Tension Among Democrats in Congress, Ronan Farrow and Jane Mayer, Sept. 14, 2018. On Thursday, Senate Democrats disclosed that they had referred a complaint regarding President Trump’s Supreme Court nominee, Judge Brett Kavanaugh, to the F.B.I. for investigation. The complaint came from a woman who accused Kavanaugh of sexual misconduct when they were both in high school, more than thirty years ago.

The woman, who has asked not to be identified, first approached Democratic lawmakers in July, shortly after Trump nominated Kavanaugh.

The allegation dates back to the early nineteen-eighties, when Kavanaugh was a high-school student at Georgetown Preparatory School, in Bethesda, Maryland, and the woman attended a nearby high school. In the letter, the woman alleged that, during an encounter at a party, Kavanaugh held her down, and that he attempted to force himself on her.

She claimed in the letter that Kavanaugh and a classmate of his, both of whom had been drinking, turned up music that was playing in the room to conceal the sound of her protests, and that Kavanaugh covered her mouth with his hand.

She was able to free herself. Although the alleged incident took place decades ago and the three individuals involved were minors, the woman said that the memory had been a source of ongoing distress for her, and that she had sought psychological treatment as a result.

In a statement, Kavanaugh said, “I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.”

ny times logodianne feinsteinNew York Times, Dianne Feinstein Refers a Kavanaugh Matter to Federal Investigators, Nicholas Fandos and Catie Edmondson, Sept. 14, 2018 (print edition). The senior Democrat on the Senate Judiciary Committee referred information involving Judge Brett M. Kavanaugh, President Trump’s nominee to the Supreme Court, to federal investigators on Thursday, but the senator, right, declined to make public what the matter involved.

Two officials familiar with the matter say the incident involved possible sexual misconduct between Judge Kavanaugh and a woman when they were both in high school. They spoke anonymously because they were not authorized to discuss the matter.

The statement by Senator Dianne Feinstein of California came a week before the Judiciary Committee is to vote on his nomination. “I have received information from an individual concerning the nomination of Brett Kavanaugh to the Supreme Court,” Ms. Feinstein said in a statement. “That individual strongly requested confidentiality, declined to come forward or press the matter further, and I have honored that decision. I have, however, referred the matter to federal investigative authorities.”

The information came in July in a letter, which was first sent to the office of Representative Anna Eshoo, Democrat of California, and accuses the judge of sexual misconduct toward the letter’s author, a person familiar with the letter confirmed.

washington post logoWashington Post, Bitter Senate fight to confirm Kavanaugh plunges deeper into chaos over letter, Seung Min Kim and Elise Viebeck, Sept. 14, 2018. The letter describes an alleged episode of sexual misconduct involving the Supreme Court nominee when he was in high school, according to a person familiar with the matter.

Politico, Sexual assault allegation roils Kavanaugh confirmation fight, Elana Schor, Burgess Everett and Eliana Johnson, Sept. 14, 2018. Republicans rushed to defend the Supreme Court nominee with a letter from women who've known him since high school.

Senate Judiciary Committee Republicans on Friday released a letter from 65 women who knew Brett Kavanaugh during his high school years calling him "a good person" — escalating their defense of the Supreme Court nominee as a decades-old sexual misconduct allegation surfaced.

Judiciary Chairman Chuck Grassley's (R-Iowa) office circulated the pro-Kavanaugh letter less than 48 hours after the committee's top Democrat, California Sen. Dianne Feinstein, referred the allegation against the nominee to the FBI. Feinstein, who declined to say when she first became aware of the accusation, said she had "honored [a] decision" by the woman making the charges to maintain confidentiality. But the senator's handling of the matter has stoked already-fierce partisan tensions over a confirmation the GOP is still pushing to wind up by the end of this month.

The woman leveling the charge against Kavanaugh attended a nearby high school at the same time as the nominee. She, Kavanaugh, and another high-school male were alone in a room together when the alleged misconduct took place, according to two sources. The New Yorker reported Friday that the woman alleged Kavanaugh had attempted to force himself on her while physically restraining her.

The flaring controversy has not shaken Republican plans to bring Kavanaugh's nomination to the Senate floor before the Supreme Court's new term begins in the first week of October. The Judiciary panel is still scheduled to vote on the nomination on Thursday, Grassley's office said.

The Senate has received an updated FBI background report on Kavanaugh that includes the letter, which means that senators will have access to the letter if they want to view it.

With Republicans holding a 51-49 advantage, Kavanaugh's prospects for approval are still on track despite his lack of 50 public "yes" votes — heightening the importance of the letter's effect on the Senate GOP's two female swing votes, Susan Collins of Maine and Lisa Murkowski of Alaska. Neither Collins nor Murkowski has expressed skepticism about the nominee.

Collins and Kavanaugh had an hour-long phone call on Friday, a spokeswoman said, though the contents of the call were not divulged. A spokeswoman for Murkowski did not respond to a request for comment.

In the letter that the GOP circulated, Kavanaugh's female contemporaries countered the damning portrayal of the nominee that has surfaced the past 24 hours. "Through the more than 35 years we have known him, Brett has stood out for his friendship, character, and integrity. In particular, he has always treated women with decency and respect," the women wrote. "That was true when he was in high school, and it has remained true to this day."

Democrats have remained notably mum about the situation since Thursday, even as liberal groups off the Hill call for a pointed push to withdraw Kavanaugh's nomination.

"That’s now in the hands of the FBI. That’s all I’m going to say about it," Sen. Mazie Hirono (D-Hawaii), who pressed Kavanaugh on the #MeToo movement during his confirmation hearing, told POLITICO’s Off Message podcast in an interview set to run Tuesday.

Brian Fallon, a former senior aide to Senate Minority Leader Chuck Schumer (D-N.Y.) who now helms the left-leaning group Demand Justice, nudged Democats for a more pointed response. "The message needs to be clear: withdraw," he said.

Undecided red-state Democrats were similarly tight-lipped following the report on the letter's content. Democratic Sens. Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana, Claire McCaskill of Missouri, Doug Jones of Alabama and Jon Tester of Montana had no immediate comment. Tester is still trying to schedule an initial meeting with Kavanaugh and Manchin is seeking a second meeting.

The White House first heard vague rumors about the allegation against Kavanaugh late last week, but the specifics of the alleged high-school sexual assault landed on White House Counsel Don McGahn's desk on Thursday, hours after Feinstein referred the matter to the FBI.

McGahn received the letter from the FBI around noon and immediately passed it to Capitol Hill, according to a White House aide. Kavanaugh and a network of clerks and former clerks who have been working with him during the confirmation process immediately lurched into action, contacting more than five dozen women who have known the judge since high school to sign the letter attesting to his character.

Nonetheless, most Republicans on Capitol Hill preparing to defend Kavanaugh amid attacks from Democrats were not aware of the letter as recently as Thursday, according to two people working on the nomination. Grassley still had not seen the letter as of Friday, according to his office, although a White House aide said the Judiciary panel received a ronan farrowphysical copy of it within an hour after McGahn did.

Kavanaugh's denial may do little to stanch the damaging trickle of revelations. The co-author of the New Yorker's story, Ronan Farrow, right, has traveled to California in an attempt to persuade the woman behind the allegations to share her story, according to a source familiar with his reporting. The woman's letter was channeled to Feinstein as well as to Rep. Anna Eshoo (D-Calif.) through a Stanford Law School professor.

washington post logoWashington Post, Opinion: Brett Kavanaugh misled the Senate under oath. I cannot support his nomination, Patrick Leahy, Sept. 14, 2018 (print edition). Patrick Leahy, right, a Democrat, represents Vermont in the U.S. Senate and is a former chairman of the Senate Judiciary Committee..

Pat LeahyLast week, I uncovered new evidence that Supreme Court nominee Brett M. Kavanaugh misled the Senate during his earlier hearings for the D.C. Circuit Court by minimizing and even denying his involvement in Bush-era controversies. I gave him the opportunity to correct his testimony at his hearing last week; he chose instead to double down.

I make no claim that Kavanaugh is a bad person. But when his prior confirmation to our nation’s “second highest court” was in jeopardy, he repeatedly misled the Senate when the truth might have placed that job out of reach.

Take his relationship with the ringleader of the “Memogate” scandal. Between 2001 and 2003, two Republican staffers regularly gained unauthorized access to the private computer files of six Democratic senators, including mine, taking 4,670 files on controversial judicial nominees.

Kavanaugh was asked more than 100 times about this scandal in 2004 and 2006. He testified repeatedly that he knew nothing about the source of the information; that he received nothing that even appeared to be prepared by Democratic staff; and that he never suspected anything unusual, or “untoward.”

But emails I released last week show that then-Republican Senate Judiciary Committee counsel Manuel Miranda regularly shared obviously ill-gotten, inside information with Kavanaugh, which Miranda often asked be kept secret.

washington post logoWashington Post, Opinion: What to do about the Kavanaugh allegation, Jennifer Rubin, Sept. 14, 2018. Post report: Supreme Court nominee Brett M. Kavanaugh on Friday “categorically” denied an allegation of potential sexual misconduct when he was in high school that has roiled the final days of an already contentious confirmation fight in the Senate.

Republicans managed to recruit 65 women to attest to Kavanaugh’s good character, but that’s obviously not dispositive of anything. (It is really speedy work, though, if they learned about the allegation just today.)

Whatever you think of Kavanaugh, this allegation poses a real dilemma. The Senate cannot do nothing with the information — but neither should it materially delay the proceedings. The committee will not vote on Kavanaugh’s confirmation until Sept. 20. That gives the committee plenty of time to search for witnesses and to put Kavanaugh back under oath, however briefly, for the sole purpose of asking him about the alleged incident.

The situation is unlike others we’ve all seen in the #MeToo era, in which powerful men were accused of sexual harassment or assault: Harvey Weinstein, Leslie Moonves, Al Franken, Eric Schneiderman, Roy Moore and others (and yes, there is a really, really big difference between what Franken was accused of and what, say, Moore was alleged to have done to minors). In all of those cases, at least some of the women identified themselves and stepped forward — the public and the accused could evaluate their credibility.

On a matter as serious as a Supreme Court nomination, one should not allow an accuser to maintain anonymity. It’s just not fair, and it’s not how our legal system is supposed to function

SCOTUSBlog, Friday round-up, Edith Roberts, Sept. 14, 2018 (Visit SCOTUSblog for hotlinks to original articles). For The New York Times, Catie Edmondson and Nicholas Fandos report that “[t]he senior Democrat on the Senate Judiciary Committee referred information involving Judge Brett M. Kavanaugh, President Trump’s nominee to the Supreme Court, to federal investigators on Thursday, but the senator declined to make public what the matter involved.”

Additional coverage comes from Seung Min Kim and Elise Viebeck for The Washington Post, Richard Wolf for USA Today, Kristina Peterson and Jess Bravin for The Wall Street Journal, Burgess Everett and Edward-Isaac Dovere at Politico, and Jennifer Haberkorn for the Los Angeles Times, who reports that the Intercept, an online news publication that originally revealed the existence of the letter, “said the letter apparently describes an incident involving Kavanaugh and a young woman while they were in high school, but included no details.”

Nina Totenberg reports for NPR that “[t]he White House is accusing Senate Democrats of an unfounded ‘11th hour attempt to delay’ a vote on the nomination of Brett Kavanaugh to the U.S. Supreme Court.” The editorial board of The Wall Street Journal asserts that “[t]he episode says more about the desperation of Democrats than it does about Mr. Kavanaugh, and the real disgrace would be if Republicans did anything other than move promptly to a confirmation vote.”

At USA Today, Christal Hayes reports that “[a] watchdog group is asking the Justice Department to investigate a number of groups they say may be illegally pressuring Sen. Susan Collins to gain her vote against … Kavanaugh,” which “Collins says she sees … as an attempt to bribe her for the vote.” Geof Koss and Ellen Gilmer report for E&E News that “Sen. Lisa Murkowski is scrutinizing Supreme Court nominee Brett Kavanaugh’s record on tribal issues, as pressure grows from Alaska Natives to oppose President Trump’s latest pick for the high court.”

For this blog, in a post originally published at Howe on the Court, Amy Howe offers highlights from Kavanaugh’s responses to over 1,200 written questions submitted by Judiciary Committee members in the wake of the hearing. At Education Week, Mark Walsh reports that Kavanaugh explained in response to one question “that he assumed the father of a student killed in the Parkland, Fla., shooting who had approached him on the chaotic first day of his confirmation hearing was a protestor.”

At Rewire.News, Imani Gandy argues that both sides in the dispute over whether Kavanaugh was expressing his own views or those of a litigant when he used the term “abortion-inducing drugs” at the hearing to describe contraceptives “are overlooking the important part: the fact that Kavanaugh’s opinion in Priests for Life … suggests a willingness to allow evangelicals, by claiming a sincerely held religious belief, to be exempted from laws intended to provide people with contraceptive access through their employers, even when following those laws would require said employers to do nothing more than sign a piece of paper.”

In an op-ed for The Washington Post, Paul Waldman writes that “a Supreme Court with Kavanaugh on it could create a free-for-all when it comes to the influence of money in politics, a new era in which corruption is absolutely rampant — and completely legal.” At The Daily Signal, Thomas Jipping deplores “the misdirection, the fake indignation, the sudden interest in a once-irrelevant confirmation process, [and] the most creative obstruction tactics” of Senate Democrats who “already had their minds made up” to oppose the nomination.

Sept. 13

msnbc logo CustomMSNBC, The Last Word, Lawrence O'Donnell, Sept. 13, 2018. MSNBC host Lawrence O'Donnell, a former high-ranking Senate staffer for Democrats, told his audience clarence thomas eeoc wThursday night that he learned of the letter the previously Friday. He said the claim by a woman who was a minor, as was Kavanaugh, regarding a matter "sexual in nature" could be considered a "sexual assault" depending on circumstances, according to his information.

O'Donnell said that his initial reaction was that the matter would not be made public because the complainant declined to press the matter or step forward. But the process has a way of changing with allegations that he described as apparently serious.

O'Donnell said that the situation appears to have an "eerie" resemblance to the charges made by whistleblower Anita Hill against Clarence Thomas. Hill similarly made allegations of sexual harassment privately, but found herself pulled into public testimony before a committee that treated her shabbily, he said.

O'Donnell said the charge against Kavanaugh could be regarded as "assault" and thus more serious than the harassment claim by Hill against her onetime boss Thomas, shown in a file photo. Republicans, bolstered by a majo advertising campaign by the group Citizens United, pressured a then-Democratic majority in the Senate push the Thomas confirmation process quickly without calling all relevant witnesses before his confirmation by a narrow margin.

Palmer Report, Opinion: Democrats move forward with plan to force GOP Senator Lisa Murkowski to vote against Brett Kavanaugh, Bill Palmer, Sept. 13, 2018. Over the past week we’ve seen a lot of attention paid to the efforts to push Republican Senator Susan Collins to vote against Donald Trump’s Supreme Court nominee Brett Kavanaugh. That plan is straightforward: raise so much money now for Collins’ eventual Democratic opponent in 2020, she’ll realize her career is over if she votes “yes.” Far less attention has been paid to the efforts to push GOP Senator Lisa Murkowski to reject Kavanaugh, even though it’s an aggressive plan being led by Senate Democrats.

Collins comes from the moderate state of Maine, so it’s realistic that she could lose to a Democrat in 2020 if she votes for a far-right extremist like Brett Kavanaugh.

But Murkowski comes from Alaska, which is as red as you can get. Murkowski is a rare pro-choice Republican, a reminder that Alaska’s status as a red state arguably has less to do with social conservatism and more to do with its anti-federal government views. In any case, it would be far harder for a Democrat to defeat Murkowski. However, there is another way to pressure her.

Lisa Murkowski lost the Republican primary race in 2010, and only managed to keep her Senate seat thanks to a write-in campaign which was spearheaded by the Alaska Federation of Natives. Last week we saw Democratic Senator Mazie Hirono of Hawaii focus heavily on Brett Kavanaugh’s stances against the rights of Natives. Sure enough, according to a major Alaska newspaper, the Federation announced today that it opposes the Kavanaugh nomination. This is a big deal.

Although Senator Murkowski isn’t up for reelection until 2022, it’s becoming clear that her political career will end in 2022 if she votes in favor of Brett Kavanaugh. If Senator Hirono made it impossible for Murkowski to vote “yes” by rallying the Natives against Kavanaugh, Senator Dianne Feinstein may have just given Murkowski an easy excuse to vote “no” by referring Kavanaugh to the FBI for criminal investigation for alleged sexual misconduct.

Palmer Report, Opinion: FBI goes all-in on Brett Kavanaugh sexual assault investigation, Bill Palmer, Sept. 13, 2018. Hours after Senator Dianne Feinstein confirmed that she referred Supreme Court nominee Brett Kavanaugh to the FBI for criminal investigation, various news outlets have reported that it centers around a sexual assault allegation. This evening we’re learning that the FBI is taking the matter very seriously.

This evening Rachel Maddow revealed during her MSNBC show that the FBI has now added this matter to the criminal background check that it already performed on Brett Kavanaugh as part of his confirmation process. This means the FBI views this criminal referral as a credible matter, and not as some kind of left-field hoax. This isn’t particularly surprising; as Palmer Report explained earlier today, Feinstein wouldn’t have wasted the FBI’s time – and set herself up for potential backlash – if she didn’t feel like this was a serious accusation. So now what?

As pointed out on-air by Maddow, the FBI’s decision to update Kavanaugh’s criminal background check means that Donald Trump’s White House is now aware of the accusation in question. Senator Feinstein stated earlier that she wasn’t revealing the identity of the accuser, at her request. While it’s not clear if the Trump regime is about to learn the name of the accuser, they are about to learn the details of the accusations she’s making against Kavanaugh. That means Trump’s people may decide to begin dishonestly spinning the accusations as a way of muddying the waters.

We’ll see if this prompts the accuser to preemptively come forward, and how it changes the strategy that Senate Democrats are moving forward with. Before this news broke, the Democrats were already zeroing in on Kavanaugh’s time as a clerk for former judge Alex Kozinski, who resigned last year after being accused of sexual misconduct by several women. It’s still not clear what the connection might be, but it is fairly clear that the Democrats know some things that the rest of us don’t yet know.

Roll Call, Kavanaugh Set to Advance Amid Democratic Objections, Todd Ruger, Sept. 13, 2018. Kavanaugh Set to Advance Amid Democratic Objections; Supreme Court nominee mostly evasive in follow-up answers to Judiciary panel.

Republicans on the Senate Judiciary Committee voted Thursday to hold a committee vote on the Supreme Court nomination of Brett Kavanaugh at a specific time, 1:45 p.m., on Sept. 20. The vote was 11-10 along party lines over the objections of committee Democrats who said it would prematurely cut off debate.

Democrats on the Senate Judiciary Committee still had a lot of questions for Kavanaugh after last week’s confirmation hearing — they asked more than 1,200 written follow-up queries. But the nominee didn’t provide many revealing answers late Wednesday when he turned in 263 pages of responses in which he tried to provide more thoughts on one of the more dramatic moments of his confirmation hearing, brush aside questions about his finances, and clean up answers about abortion, his independence from political pressure and other topics.

But Kavanaugh appeared most keen to avoid any missteps that might jeopardize his solid support among Republicans. He did little to assuage concerns from Democrats about what they contend are inaccurate or false statements and remained elusive on many of the most contentious questions.

dianne feinsteinThe Intercept, Feinstein acknowledges mystery letter exists, Ryan Grim, Sept. 13, 2018. Yesterday I reported that Democrats on the Senate Judiciary Committee had requested to privately review a document related to Brett Kavanaugh that was in the possession of Dianne Feinstein, right, the top-ranking Democrat on the panel. She refused.

Last night, she briefed Democrats on its contents and today she put out a statement acknowledging that the document exists and that she has turned it over to the FBI. The New York Times is reporting that the letter alleges sexual misconduct while Kavanaugh was in high school, which is also what I was told by sources familiar with it.

ny times logoNew York Times, Opinion: A Supreme Court Transformed, Linda Greenhouse, Sept. 13, 2018. What will the court look like when neither side of the ideological divide has to walk on eggs to win the favor of the justice in the middle?

Mother Jones, The Many Mysteries of Brett Kavanaugh’s Finances, Who made the down payment on his house? How did he come up with $92,000 in country club fees? Stephanie Mencimer, Sept. 13, 2018. Before President Donald Trump nominated Brett Kavanaugh to the Supreme Court, he had a lot of debt. In May 2017, he reported owing between $60,004 and $200,000 on three credit cards and a loan against his retirement account.

By the time Trump nominated him to the high court in July 2018, those debts had vanished.

Overall, his reported income and assets didn’t seem sufficient to pay off all that debt while maintaining his upper-class lifestyle: an expensive house in an exclusive suburban neighborhood, two kids in a $10,500-a-year private school, and a membership in a posh country club reported to charge $92,000 in initiation fees. His financial disclosure forms have raised more questions than they’ve answered, leading to speculation about whether he’s had a private benefactor and what sorts of conflicts that relationship might entail.

No other recent Supreme Court nominee has come before the Senate with so many unanswered questions regarding finances. That’s partly because many of Kavanaugh’s predecessors were a lot richer than he is. Chief Justice John Roberts, for instance, had been making $1 million a year in private practice before joining the DC Circuit as a judge. The poorer nominees had debts, but explainable ones, such as the $15,000 Sonia Sotomayor owed to her dentist. Neil Gorsuch came the closest to financial scandal when he disclosed that he owned a mountain fishing lodge in Colorado with two men who are top deputies to the billionaire Philip F. Anschutz, who had championed Gorsuch’s nomination.

Kavanaugh’s finances are far more mysterious. During his confirmation hearing last week, he escaped a public discussion of his spending habits because no senator asked about it. But on Tuesday, Sen. Sheldon Whitehouse (D-RI), a member of the Senate Judiciary Committee, sent Kavanaugh 14 pages of post-hearing follow-up questions, many of which involved his finances.

On Thursday, Kavanaugh supplied answers, but he dodged some of the questions and left much of his financial situation unexplained.

Sept. 12

washington post logoWashington Post, Kavanaugh offers details on purchases of Nationals tickets that led to thousands in debt, Seung Min Kim​, Sept. 12, 2018. The Supreme Court nominee’s explanation is part of written responses to questions posed by the Senate Judiciary Committee. Brett M. Kavanaugh also fielded questions about same-sex marriage and the Mueller investigation.

washington post logoWashington Post, Opinion: Two problems Brett Kavanaugh still must address, Jennifer Rubin, Sept. 12, 2018. Sen. Sheldon Whitehouse (D-R.I.) on Tuesday sent 14 pages of questions to Supreme Court nominee Brett M. Kavanaugh. While Whitehouse covers a lot of ground — from abortion, to environmental regulations, to work Kavanaugh performed in the George W. Bush administration — two things stand out.

First, he asks a ton of questions about the judge’s finances, including “Are there any debts, creditors, or related items that you did not disclose on your FBI disclosures?” He asks a slew of questions about the debt Kavanaugh incurred allegedly paying for baseball tickets for a friend who reimbursed him, as well as how he could afford membership at the Chevy Chase Club, which reportedly has a $92,000 initiation free and annual dues of more than $9,000.

brett kavanaughWhitehouse also inquired whether Kavanaugh “participated in any form of gambling or game of chance or skill with monetary stakes, including but not limited to poker, dice, golf, sports betting, blackjack, and craps.” He even goes so far as to inquire whether Kavanaugh, right, “ever sought treatment for a gambling addiction.

The second and, perhaps, more fundamental area of inquiry has to do with Kavanaugh’s views on executive power. In his testimony to the Senate Judiciary Committee, Kavanaugh gave not an ounce of reassurance to any senator concerned about executive power. It’s a measure of the degree to which the White House assumes all Republican votes are locked up that Kavanaugh brushed off questions not only from Democrats, but from independent-minded Sen. Jeff Flake (R-Ariz.).

HuffPost, Pressure Mounts On Susan Collins, Lisa Murkowski To Block Brett Kavanaugh, Laura Bassett, Sept. 12, 2018. The Maine and Alaska Republicans are feeling the heat in their home states ahead of Kavanaugh’s confirmation vote.

susan collins oSen. Susan Collins (R-Maine), right, has received 3,000 coat hangers in the mail. Women dressed as handmaids in red robes and bonnets have shown up at her home in Maine to protest. Activists have raised over $1 million for her 2020 challenger should she vote to confirm Brett Kavanaugh.

And the pressure continues to mount on Collins and Lisa Murkowski (R-Alaska), the Senate’s two potential swing votes, in the final days before a decision on President Donald Trump’s Supreme Court pick ― a conservative judge who could potentially gut abortion rights in the United States.

Planned Parenthood launched a six-figure cable and digital ad campaign in Maine on Wednesday that features a focus group of independent female voters who strongly want Collins to oppose Kavanaugh. NARAL Pro-Choice America put an additional $500,000 into its $260,000 ad campaign in Maine this week, which will run on TV and online in Maine until the vote.

Collins and Murkowski both claim to support abortion rights, and have bucked their party before to protect federal funding grants to Planned Parenthood. Both senators claim to be undecided on Kavanaugh. Collins has said she’s impervious to outside political pressure.

Palmer Report, Opinion: The Resistance has finally figured out how to push Susan Collins around, Bill Palmer, Sept. 12, 2018. For the Resistance, one of the most frustrating aspects of trying to shut down Donald Trump’s agenda has been having to rely on unreliable people like Republican Senator Susan Collins of Maine, who has voted with and against Trump in various key moments.

Palmer Report, Opinion: Senate Democrats publish documents that catch Brett Kavanaugh committing even more felony perjury, Bill Palmer, Sept. 12, 2018. The Senate confirmation hearings for Donald Trump’s Supreme Court nominee Brett Kavanaugh have already been controversial and dramatic. Yesterday we saw Democrats seek to expose Kavanaugh’s apparent gambling problem. Now the Democrats are zeroing in further on Kavanaugh’s status as a perjurer.

dick durbin speaking screenshotInfluential Senator Dick Durbin, shown in a file photo, tweeted this: “In 2006, I asked Judge Kavanaugh about his role in the 4th Circuit nomination of Jim Haynes – a key figure in crafting the Bush White House detention & interrogation policies. Under oath, he said, ‘I’ve—I know Jim Haynes, but it was not one of the nominations that I handled.’ However, these emails from 2002 and 2003 show that then-Associate White House Counsel Brett Kavanaugh played a substantial role in the decision to nominate Haynes, including examining whether Haynes ‘would be an across-the-board judicial conservative.'” Durbin then posted the emails in question.

Durbin went on to add: “This is a theme that we see emerge with Judge Kavanaugh time and time again – he says one thing under oath, and then the documents tell a different story. It is no wonder the White House and Senate Republicans are rushing through this nomination and hiding his record.” The key phrase here is “under oath.” Lying under oath is perjury, a felony, and you generally go to prison for it. Senate Democrats are exposing Kavanaugh as not merely a serial liar, but a criminal liar.

As Palmer Report has previously spelled out, the Democrats are trying to do two things here. The first is to expose Brett Kavanaugh as such as toxic pile of crap, certain vulnerable Republican Senators might conclude that they can’t vote for him, for fear it’ll cost them reelection. The second is to firmly establish that Kavanaugh has committed multiple felonies, which would set the stage for Kavanaugh to be impeached even if he is confirmed.

MS. Magazine, Why Lisa Graves is Calling for Brett Kavanaugh’s Impeachment, Carmen Rios, Sept. 12, 2018. Judge Brett Kavanaugh, President Trump’s nominee to replace Justice Anthony Kennedy on the Supreme Court, has been credibly accused of lying under oath to the Senate Judiciary Committee during his confirmation hearings and during previous hearings regarding his prior appointments.

Many of these claims center on Kavanaugh’s having received stolen memos from GOP Senate aide Manuel Miranda that included confidential memos, letters, talking points and research documents. In the years that followed, Miranda was ultimately forced to resign for stealing the documents, and the U.S. Seargant-at-Arms lauched a bipartisan investigation into the incident.

Kavanaugh denied ever receiving stolen materials from Miranda before the Senate in 2004 and again in 2006, but newly released documents to the chamber members show otherwise. The full extent of what Kavanaugh did or did not receive still remains a question, because many of his documents are being withheld from the committee—even now.

Lisa Graves, however, is quite familiar with the documents we now know Kavanaugh received — because she wrote some of them. And now, the former chief counsel for nominations for the ranking member of the Senate Judiciary Committee and deputy assistant attorney general in the Department of Justice is speaking out about Kavanaugh’s deception.

In an explosive op-ed published by Slate [I Wrote Some of the Stolen Memos That Brett Kavanaugh Lied to the Senate About, Sept. 7, 2018], Graves doesn’t mince words in calling not just for Kavanaugh to be rejected by the committee for his current nomination, but for him to be impeached from his current seat on the D.C. Circuit Court of Appeals bench.

Sept. 11

michelle goldberg thumbny times logoNew York Times, Opinion: The Handmaid’s Court, Michelle Goldberg, right, Sept. 10, 2018. Jane Doe may have been the first pregnant girl Brett Kavanaugh ruled against. But she won’t be the last.

Shortly after his inauguration, Donald Trump, uniquely attentive to his debt to the religious right, appointed the anti-abortion activist E. Scott Lloyd to head the Office of Refugee Resettlement, despite Lloyd’s lack of relevant experience. The position gave Lloyd authority over unaccompanied minors caught crossing into the United States, authority Lloyd exploited to try to stop pregnant migrants from getting abortions.

Last year, thanks to Lloyd’s interference, a 17-year-old from Central America had to wage a legal battle to end her pregnancy. Known in court filings as Jane Doe, the girl learned she was pregnant while in custody in Texas, and was adamant that she wanted an abortion.

Garza v. Hargan was the only major abortion-rights case Kavanaugh ever ruled on. His handling of it offers a clue about what’s in store for American women if he’s confirmed to the Supreme Court. No one knows whether Kavanaugh would vote to overturn Roe v. Wade outright or simply gut it. But even on a lower court, Kavanaugh put arbitrary obstacles in the way of someone desperate to end her pregnancy. Thanks to Trump, he may soon be in a position to do the same to millions of others.

SCOTUSblog, Tuesday round-up, Edith Roberts, Sept. 11, 2018 (See SCOTUSblog for hotlinks). Commentators continue to weigh in on the nomination of Judge Brett Kavanaugh to the Supreme Court in the wake of Kavanaugh’s Senate confirmation hearing last week. In an op-ed for Central Maine, Kavanaugh’s former White House colleague Sarah Day praises him as “a thoughtful leader [and] a champion of others.” For The Yale Daily News, Adelaide Feibel writes that “a few select Yalies had the chance [last week] to voice their opinions of Kavanaugh on a grand stage, before the Senate and the nation.”

Lisa Keen argues at Keen News Service that Kavanaugh’s testimony “did nothing to quell concerns in the LGBT community that Kavanaugh is an ultra-conservative, maybe even anti-LGBT, jurist who will almost certainly give the Supreme Court’s existing four conservative justices the fifth vote they need to vote against the equal rights interests of LGBT people.”

Michael Tomasky writes in an op-ed for The New York Times that lobbying red-state Democratic senators up for re-election “to vote no … [is] a waste of … time and money.”

In an op-ed for The Washington Post, E.J. Dionne contends that “[c]onservatives are willing to bend and break the rules, violate decorum and tradition, hide information and push Judge Kavanaugh through at breakneck speed” because “[t]hey want a Supreme Court that will achieve their policy objectives — on regulation, access to the ballot, social issues, the influence of money in politics and the role of corporations in our national life — no matter what citizens might prefer in the future.”

Sept. 10

brett kavanaugh zina bash c span sept 2018

Brett Judge Brett Kavanaugh faced the Senate Judiciary Committee last week, with former clerk and adviser Zina Bash at right behind him. Photo credit: C-SPAN / YouTube

whowhatwhy logoWhoWhatWhy, The Kavanaugh Hearing: Beyond the Soundbites, Celia Wexler, Sept. 10, 2018. WhoWhatWhy’s take on these incredible and historic four days. Unlike other news outlets, we offer a comprehensive story. We did not try to do this in incremental pieces, or by referring you to videos. It captures, as best we can, some of the major issues on which Kavanaugh’s vote will make a difference. And it helps you understand Kavanaugh the man. What drives this ultra-conservative judge? How does he make his decisions? What he demonstrated during the hearings is a coldness that does not bode well for the republic.

This is a man who can advocate for female law clerks, but cannot — or will not — understand the pain of a teenaged undocumented immigrant in her fourth month of pregnancy; who says he tutors students from low-income neighborhoods, but does not understand the destructive role that guns play in their world; who can espouse Catholic social-justice teaching, but sees no disconnect in gutting regulations that protect the public’s health and safety.

brett kavanaugh family white house wikimedia SmallIn the four days senators considered Brett Kavanaugh’s qualifications to be the next Supreme Court justice, Democrats went through the five stages of grief: denial, anger, bargaining, depression, and acceptance or, rather, resignation.

Kavanaugh (shown with his family and President Trump in a White House photo) would replace Justice Anthony Kennedy, the court’s swing vote, a conservative who sometimes sided with his more liberal colleagues on the bench. Kavanaugh would join the court at a time when the third branch of government — the judiciary — never seemed more important. “Fears of authoritarian rule are rampant in this country,” said Sen. Richard Durbin (D-IL) because of concerns about “a president willing to walk away from rule of law.”

Yet the Democrats had little power to change history; they are in the minority. If all 51 Republicans hang together, due to a rule change that no longer requires 60 votes for confirmation, they won’t need any Democratic votes to approve President Donald Trump’s nominee to the Supreme Court. Nothing happened last week that will likely change this outcome.

washington post logoWashington Post, Opinion: The Kavanaugh hustle, E.J. Dionne Jr., Sept. 10, 2018 (print edition). While Trump is destroying the honor and reputation of the presidency, Senate Republicans are doing all they can to destroy the legitimacy of the Supreme Court.

Conservatives are willing to bend and break the rules, violate decorum and tradition, hide information and push Judge Kavanaugh through at breakneck speed. They want a Supreme Court that will achieve their policy objectives — on regulation, access to the ballot, social issues, the influence of money in politics and the role of corporations in our national life — no matter what citizens might prefer in the future.

SCOTUSBlog, Monday round-up, Edith Roberts, Sept. 10, 2018 (visit SCOTUSblog, edited by Edith Roberts, for hotlinks to articles cited below). On Friday, the Senate Judiciary Committee wrapped up its four-day hearing on the nomination of Judge Brett Kavanaugh to the Supreme Court with a day of testimony from witnesses, including former law clerks to Kavanaugh, two former solicitors general, a survivor of the Parkland school shooting, and John Dean, President Richard Nixon’s White House counsel during Watergate.

We live-blogged the session, and Jon Levitan rounded up early coverage and commentary for this blog. Amy Howe recaps the highlights of the day’s proceedings in a podcast at Howe on the Court; a Daily Journal podcast also has a rundown.

At NPR, Nina Totenberg reports that throughout the hearing, “President Trump’s pick for the high court successfully parried questions from the Senate Judiciary Committee, and Democratic complaints that they had seen just 10 percent of his government record didn’t seem to raise much public ire.” For The Washington Post, Robert Barnes and Seung Min Kim report that “by the close of the four-day hearings, some Democrats on the Senate Judiciary Committee seemed resigned to Kavanaugh’s confirmation.”

For The New York Times, Adam Liptak observes that “Judge Kavanaugh must have studied earlier confirmation hearings carefully, as he had absorbed all of their key lessons: Say nothing, say it at great length, and then say it again.”

In an op-ed for The New York Times, Katherine Stewart argues that “[i]f the Senate confirms Brett Kavanaugh, it will be declaring that the United States is a nation in which one brand of religion enjoys a place of privilege; that we are a nation of laws — except in cases where the law offends those who subscribe to our preferred religion; and that we recognize the dignity of all people unless they belong to specific groups our national religion views with disapproval.”

At Jost on Justice, Kenneth Jost maintains that “[p]olitical differences aside, a common-sense reading of Kavanaugh’s testimony shows that he is ready if confirmed to vote to overrule the abortion-rights decision Roe v. Wade and that he is an uncertain vote at most to uphold any investigative procedures directed at the president who nominated him for the Supreme Court.” At First Mondays (podcast), Ian Samuel and Leah Litman “discuss their favorite and least favorite moments of the … hearings.”

Sept. 9

huff post logoHuffington Post, Lisa Murkowski’s Biggest Reason To Oppose Brett Kavanaugh May Not Be Abortion Rights, Jennifer Bendery, Sept. 9, 2018. Alaska Natives are urging the senator to vote no. She owes her re-election to them.

For all the speculation about Sen. Lisa Murkowski (R-Alaska), below right, and whether she’ll vote for Supreme Court nominee Brett Kavanaugh, there is an issue beyond abortion rights perhaps weighing more heavily on her as she makes her decision: protections for Alaska Natives.

lisa murkowski oAdvocates for Alaska Natives, who were crucial to Murkowski’s re-election in 2010, tell HuffPost they’ve been flooding her office all week and urging her to oppose Kavanaugh.

They’re raising concerns about his record on climate change, which is already causing real damage in Alaska. As a judge on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh in 2017 held that the Environmental Protection Agency lacks the authority to regulate hydrofluorocarbons, chemicals linked to global warming.

They’re also unhappy with his record on voting rights. Kavanaugh voted in 2012 to uphold a South Carolina voter ID law that disenfranchised more than 80,000 minority registered voters.

The most pressing matter, however, is a case the Supreme Court is reviewing on Nov. 5 that could devastate Alaska Natives’ subsistence fishing rights. The case, Sturgeon v. Frost, raises questions about who has the authority to regulate water in national parks in the state ― the federal government or the state of Alaska. The case arose after Alaska resident John Sturgeon, who was on an annual moose-hunting trip, was riding a hovercraft on a river running through a national park when Park Service officials threatened to give him a citation. Sturgeon is arguing that his ability to use his hovercraft in this scenario is about states’ rights and that federal authority should be eliminated.

Kavanaugh has previously ruled to limit federal power in cases before him. If he gets confirmed and votes with the other four right-leaning justices in favor of Sturgeon’s argument, it will destroy the way of life for tribal communities who rely on subsistence fishing in protected federal waters, some Alaska Native rights groups say.

Sept. 8

brett kavanaugh cspan hearing sept 4 2018 Custom

Supreme Court nominee Brett Kavanaugh, shown in a witness stand at far right, with Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) at left center.

washington post logopat leahy hsWashington Post, Leahy says Kavanaugh was ‘not truthful’ about Democratic documents, Michael Kranish, Sept. 8, 2018 (print edition). The Vermont senator, right, said the Supreme Court nominee should have realized the material was “stolen.”

washington post logoWashington Post, Ex-Nixon counsel warns of a court overly deferential to the president, Seung Min Kim, Sept. 8, 2018 (print edition). John Dean, the former Nixon White House counsel who played a crucial role in the Watergate scandal, testified Friday that confirming Judge Brett M. Kavanaugh as a justice will lead to the “most presidential-powers friendly” Supreme Court in the modern age.

john dean white house photoThe sharp criticism was laid out in Dean’s remarks before the Senate Judiciary Committee on the last day of Kavanaugh’s confirmation hearings. More than two dozen witnesses testified in favor of and against President Trump’s Supreme Court pick.

Dean (shown in his pre-Watergate days as Nixon White House Counsel) argued in his testimony that conservatives have “slowly done a 180-degree turn” on executive power and that a Supreme Court that is overly deferential to the president is “deeply troubling,” with Republicans controlling both the House and Senate.

“Under Judge Kavanaugh’s recommendation, if a president shot someone in cold blood on Fifth Avenue, that president could not be prosecuted while in office,” Dean told senators, a reference to Trump’s oft-repeated campaign line that he could act that way and not lose support.

Sept. 7

SCOTUSblog, Evening round-up: Final day of Judge Kavanaugh’s confirmation hearing, Jon Levitan, Sept. 7, 2018. The Senate Judiciary Committee has concluded its hearing on the nomination of Judge Brett Kavanaugh to the Supreme Court.

Today consisted of witness testimony; there were four panels and 28 total witnesses.

Coverage of the day’s events comes from Jessica Gresko of the Associated Press, who reports that “with [Kavanaugh’s] questioning over, he seemed on his way to becoming the court’s 114th justice.” For The Washington Post, Seung Min Kim focuses on the testimony of John Dean, former White House counsel for the Nixon Administration, “who played a crucial role in the Watergate scandal” and testified against Kavanugh’s confirmation. Further coverage comes from Amanda Becker of Reuters, Byron Tau of The Wall Street Journal; Erik Wasson of Bloomberg; and Emma O’Connor of Buzzfeed.

Commentary on the hearing comes from Damon Root for Reason; Ian Millhiser of ThinkProgress; John Nichols for The Nation; Hans A. von Spakovsky for Fox News; David B. Rivkin Jr. in The Hill; Monica Hesse for The Washington Post; Jeremy Stahl of Slate, with another piece from Slate from Dahlia Lithwick, who focuses on the protesters who interrupted the hearings.

Editorials come from The Wall Street Journal, which decried Senator Cory Booker’s release of documents on Thursday, and The Washington Post, which lamented “a depressing display of the breakdown of Senate norms.” Two podcasts discuss the hearing — Elizabeth Slattery looks at the highlights with Tom Jipping and Hans A. von Spakovsky on SCOTUS 101, while Garrett Epps was interviewed by Diane Rehm on On My Mind.

ny times logoNew York Times, At Hearing’s End, Democrats Accuse Kavanaugh of Misleading Them on Crucial Issues, Charlie Savage and Sheryl Gay Stolberg, Sept. 7, 2018. Four days of Supreme Court confirmation hearings ended the way they began: With fierce partisan divisions over Judge Brett M. Kavanaugh. Here are some of the issues that arose during the hearing, and how Judge Kavanaugh addressed them.

brett kavanaughSenate Democrats and their allies accused Judge Brett M. Kavanaugh on Friday of misleading the Judiciary Committee, saying he dissembled in testimony about crucial issues ranging from his views on abortion rights to his involvement in several Bush-era controversies.

But Republicans expressed confidence that none of the punches Democrats had thrown at the Supreme Court nominee had landed with sufficient force to jeopardize his confirmation.

Four days of Supreme Court confirmation hearings ended on Friday the way they began, with sharply partisan charges and tension remarkable for normally staid proceedings.

In two of the strongest statements on Friday, Senator Dianne Feinstein of California, the top Democrat on the committee, said on Twitter that Judge Kavanaugh gave answers that “were not true” when asked whether he had used “materials stolen” from committee Democrats when he was a White House lawyer under President George W. Bush. Senator Ron Wyden, Democrat of Oregon, also using Twitter, accused the judge of lying.

ny times logoNew York Times, Opinion: Confirmed -- Brett Kavanaugh Can’t Be Trusted, Editorial Board, Sept. 7, 2018. A perfect nominee for a president with no clear relation to the truth. In a more virtuous world, Judge Brett Kavanaugh would be deeply embarrassed by the manner in which he has arrived at the doorstep of a lifetime appointment to the Supreme Court.

He was nominated by a president who undermines daily the nation’s democratic order and mocks the constitutional values that Judge Kavanaugh purports to hold dear.

Now he’s being rammed through his confirmation process with an unprecedented degree of secrecy and partisan maneuvering by Republican senators who, despite their overflowing praise for his legal acumen and sterling credentials, appear terrified for the American people to find out much of anything about him beyond his penchant for coaching girls’ basketball.

Perhaps most concerning, Judge Kavanaugh seems to have trouble remembering certain important facts about his years of service to Republican administrations. More than once this week, he testified in a way that appeared to directly contradict evidence in the record.

ny times logoNew York Times, The Future of Abortion Under a New Supreme Court? Look to Arkansas, Sabrina Tavernise, Sept. 7, 2018. When a patient arrived this spring at the only abortion clinic in western Arkansas, the doctor had startling news: A new state law had gone into effect, and clinics could no longer perform abortions via medication in the state.

“Wait — all of Arkansas?” the patient asked her doctor, Stephanie Ho.

“Yes,” Dr. Ho remembered replying.

Less than a month later, a judge suspended the law, which is now the focus of a legal fight as Arkansas tries to reinstate it. In the meantime, Dr. Ho is working at one of the three remaining abortion clinics in the state, aware that, at any moment, she might have to stop performing abortions again.

The fight in Arkansas could help define the looming legal battle over abortion, 45 years after the Supreme Court made it a constitutional right. There are 13 abortion cases currently before federal appeals courts, including the Arkansas case, and legal experts say any of them could be the first to reach the Supreme Court after Justice Anthony Kennedy’s retirement. Others include a parental consent law in Indiana, a ban on a common second-trimester abortion procedure in Alabama, and a requirement in Kentucky that ultrasounds be displayed and described.

Slate, Opinion: I Wrote Some of the Stolen Memos That Brett Kavanaugh Lied to the Senate About; He should be impeached, not elevated, Lisa Graves, Sept. 7, 2018. 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.

NBC News logoNBC News, Opinion: I knew Brett Kavanaugh during his years as a Republican operative. Don't let him sit on the Supreme Court, David Brock, Sept. 7, 2018. David Brock is the author of five political books, including "Killing the Messenger" (Hachette, 2015) and "Blinded by the Right: The Conscience of an Ex-Conservative" (Crown, March 2002). He founded Media Matters for America in 2004 and then American Bridge 21st Century in 2011.

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 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.

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 gumshoe Barbara Comstock is 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.

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.

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.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.

HuffPost, Brett Kavanaugh Refers To Birth Control As ‘Abortion-Inducing Drugs’ At Confirmation Hearing, Jenavieve Hatch, Sept. 7, 2018. On the third day of Supreme Court nominee Brett Kavanaugh’s confirmation hearing in front of the Senate Judiciary Committee, he referred to contraception as “abortion-inducing drugs.”

ted cruz oJudge Kavanaugh was responding to a question from Sen. Ted Cruz (R-Texas), right, on Thursday about his 2015 dissent in the Priests for Life v. HHS case. Kavanaugh had sided with the religious organization, which didn’t want to provide employees with insurance coverage for contraceptives.

Priests for Life, a Catholic group that opposes abortion rights, filed a lawsuit against the Department of Health and Human Services in 2013 over the provision under the Affordable Care Act that required certain health care providers to cover birth control. The group argued that the provision was a violation of the Religious Freedom Restoration Act ― the same premise of the Hobby Lobby lawsuit in 2014.

A panel of the U.S. Court of Appeals for the D.C. Circuit ruled against Priests for Life in 2014. When the group tried and failed to get a full court hearing the next year, Kavanaugh dissented to lay out why he would have ruled for them.

OpEdNews, Opinion: Deep State: Kavanaugh Covered-up Murder of Vince Foster, Garland Favorito, Sept. 7, 2018. As Republicans and Democrats exchange barbs on how wonderful or terrible Brett Kavanaugh's decisions will be as a U.S. Supreme Court judge, neither group of senators will have the courage to discuss an elephant in the committee room concerning Judge Kavanaugh's background. In 1996, Kavanaugh conducted an investigation into the death of Vincent Foster and concluded his death was a suicide despite overwhelming evidence Foster was murdered.

  • Kavanaugh replaced him and completed the investigation that concluded Foster committed suicide despite obvious evidence of murder:
  • Foster did not own the gun or ammunition that was used to kill him;
  • Foster's fingerprints were not on the gun that was used to kill him;
  • No dirt or grass was on his shoes but he was found 200 yards into the park;
  • Foster's grey 1989 Honda was not in the parking lot at the time of his death;
  • Powder burns found on his body were consistent with homicide, not suicide.

The U.S. Court of Appeals eventually ordered Starr to include a supplement about the cover-up in the final 20 pages of his report despite his objections. The supplement was written by Attorney John Clarke, witness Patrick Knowlton and researcher Hugh Turley.

Sept. 6

Supreme Court Battle

washington post logocory booker senateWashington Post, Clash intensifies over Kavanaugh records as new documents released, Seung Min Kim, Ann E. Marimow and Mark Berman​, Sept. 6, 2018. Sen. Cory Booker (D-N.J.), shown in a file photo, said he was willing to violate chamber rules and release confidential documents about Supreme Court nominee Judge Brett M. Kavanaugh — and to risk the consequences. It came as the fight intensified over access to records from Kavanaugh’s time in the George W. Bush White House.

ny times logoNew York Times, Leaked Kavanaugh Documents Discuss Abortion and Affirmative Action, Charlie Savage, Sept. 6, 2018. As a White House lawyer in the Bush administration, Judge Brett Kavanaugh challenged the accuracy of deeming the Supreme Court’s landmark Roe v. Wade abortion rights decision to be “settled law of the land,” according to a secret email obtained by The New York Times.

The email, written in March 2003, is one of thousands of documents that a lawyer for President George W. Bush turned over to the Senate Judiciary Committee about the Supreme Court nominee but deemed “committee confidential,” meaning it could not be made public or discussed by Democrats in questioning him in hearings this week. It was among several an unknown person provided to The New York Times late Wednesday.

Judge Kavanaugh was considering a draft opinion piece that supporters of one of Mr. Bush’s conservative appeals court nominees hoped they could persuade anti-abortion women to submit under their names. It stated that “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”

Judge Kavanaugh proposed deleting that line, writing: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.”

ny times logopaul krugmanNew York Times, Opinion: Kavanaugh Will Kill the Constitution, Paul Krugman, right, Sept. 6, 2018. The legitimacy of the Supreme Court is on the line. At a fundamental level, the attempt to jam Brett Kavanaugh onto the Supreme Court closely resembles the way Republicans passed a tax cut last year.

Once again we see a rushed, nakedly partisan process, with G.O.P. leaders withholding much of the information that’s supposed to go into congressional deliberations. Once again the outcome is all too likely to rest on pure tribalism: Unless some Republicans develop a very late case of conscience, they will vote along party lines with the full knowledge that they’re abdicating their constitutional duty to provide advice and consent.

True, Kavanaugh is at least getting a hearing, which the tax bill never did. But he’s bobbing and weaving his way through, refusing to answer even straightforward questions, displaying an evasiveness utterly at odds with the probity we used to expect of Supreme Court justices.

No, the real difference from the tax bill story is that last year we were talking only about a couple of trillion dollars. This year we’re talking about the future of the Republic. For a Kavanaugh confirmation will set us up for multiple constitutional crises.

So let me make a last-minute appeal to Republican senators who care about America’s future, if there are any left: Don’t do this. A vote for Kavanaugh will be a vote to destroy the legitimacy of one of the last federal institutions standing.

washington post logoWashington Post, Kavanaugh advised against calling Roe v. Wade ‘settled law’ while a White House lawyer, Sept. 6, 2018. A 2003 email written by the future Supreme Court nominee was among those deemed “committee confidential.”

washington post logoWashington Post, Analysis: What Kavanaugh won’t say may be as revealing as what he will, James Hohmann, Sept. 6, 2018. Here are a dozen noteworthy questions about executive power, preexisting conditions and other issues that President Trump's nominee for the Supreme Court dodged.

ny times logoNew York Times, Opinion: No More Grandstanding. Ask Kavanaugh Better Questions, Peter H. Schuck, Sept. 6, 2018. Mr. Schuck is an emeritus professor of law at Yale. Justices rarely perform the way partisans and the news media expect them to. In 75 percent of cases, partisan affiliation is not fully predictive of justices’ votes. In the hardest ones, lower courts reached different results despite seeing the same evidence, and considering the same legal arguments.

This week, senators should spend less time grandstanding with questions that simply highlight Judge Kavanaugh’s well-known ideological positions, and a lot more time trying to assess how he would vote in these much trickier cases.

Sept. 5

Kavanaugh Court Hearings

brett kavanaugh screen grab 9 5 2018 at 3 56 pm

Supreme Court nominee Brett Kavanaugh, an federal court of appeals judge, at his U.S. Senate confirmation hearing on Sept. 5, 2018 (screengrab at 3:56 p.m.)., Kavanaugh’s judicial activism on display, Sept. 5, 2018. On the second day of the Brett Kavanaugh confirmation hearings, the Supreme Court nominee’s legal record is under close scrutiny. While far from is most important ruling, his last signed opinion as an appellate court judge provides a window into his judicial philosophy.

In a split decision on July 9, Kavanaugh’s vote decided my Freedom of Information Act (FOIA) lawsuit for certain JFK assassination files. As fellow judge Karen Henderson pointed out in a stinging dissent, the majority decision ignored precedent and invented mandate.

Substantively, Kavanaugh’s decision undermined a key feature of FOIA law and strengthened the CIA and other agencies that want to keep embarrassing secrets out of the public record–even when they are more than 50 years old. That’s why I’m appealing the decision.

washington post logodana milbank CustomWashington Post, Opinion: Never have we seen such a spectacle, Dana Milbank, right, Sept. 5, 2018. Brett M. Kavanaugh’s Supreme Court confirmation hearing is scheduled to last all week. Judiciary Committee Chairman Charles E. Grassley lost control after just 13 words. There has never been a disruptive spectacle like this at a Supreme Court confirmation hearing. But then there has never been a Supreme Court nomination like this.

Kavanaugh may not become the most conservative member of the court, but his background suggests he would be the most partisan. Working for Kenneth W. Starr in the 1990s, he was involved in the Vincent Foster and Monica Lewinsky inquiries, proposing an explicit line of questioning for President Bill Clinton with graphic queries about genitalia, masturbation, phone sex and oral sex. And as a young lawyer under George W. Bush, Kavanaugh was involved in Bush v. Gore, the probe of Clinton’s pardons and legal decisions about torture.

Hence the importance of the “documents.” Democrats say the committee received only 7 percent of Kavanaugh’s White House documents — and some of those have been altered, while half cannot be discussed publicly.

Why? They would likely reinforce what is already known about Kavanaugh as a nakedly partisan appointment, solidifying the court’s transition from a deliberative body to what is effectively another political branch.

washington post logoWashington Post, Kavanaugh won’t say whether presidents have to respond to subpoenas, Seung Min Kim, Ann E. Marimow and Elise Viebeck, Sept. 5, 2018. Supreme Court nominee Brett M. Kavanaugh emphasized that he had not taken a position on constitutional issues regarding presidential investigations. Earlier, Kavanaugh testified that the landmark 1973 Roe v. Wade ruling that legalized abortion was settled precedent. But he did not say whether the case was correctly decided.

washington post logoWashington Post, Hearing offers an ‘unprecedented’ display of the Senate’s institutional decline, James Hohmann, Sept. 5, 2018.  The hearing for President Trump's latest Supreme Court nominee is dramatically more intense than last year’s hearing for Neil M. Gorsuch because both sides expect Brett M. Kavanaugh will tip the balance of the court.

Esquire, Brett Kavanaugh Was Up a Tree. We Should See the Documents That Put Him There, Charles P. Pierce, Sept 5, 2018. The public has a right to know far more about the Supreme Court nominee's activities in the Bush White House.

pat leahy hsThere was a serious bit of eminence grise-on-eminence grise crime in the Senate Judiciary Committee between Chairman Chuck Grassley and Democratic Senator Pat Leahy, shown at right.

It came at an interesting moment, because Judge Brett Kavanaugh had been caught by Leahy with a line of questioning for which the nominee clearly had not been prepared. It involved an episode while Kavanaugh worked in the White House counsel's office under President George W. Bush. In 2004, it was revealed by Charlie Savage, then working at the Boston Globe, that Republican staff members on the Judiciary Committee had penetrated the computer files of the Democratic senators on that committee that were concerned with judicial nominees, and that, in addition to using the purloined files to their own advantage, those staffers shared them with the media.

Leahy got Kavanaugh floundering on what, if anything, he knew about this rather garish dirty trick. Pretty plainly, Leahy was relying on documents marked "Committee-Confidential," which is material available to committee members, who can read the documents, but not share them publicly. Leahy rather obviously knew enough to imply that Kavanaugh at least was aware of the espionage, and that he received at least some of the stolen documents.

washington post logoWashington Post, After nominee is heckled, Trump suggests protesting should be illegal, Felicia Sonmez, Sept. 5, 2018 (print edition). President Trump has long derided the mainstream media as the “enemy of the people” and lashed out at NFL players for kneeling during the national anthem. On Tuesday, he took his attacks on free speech one step further, suggesting in an interview with a conservative news site that the act of protesting should be illegal.

Trump made the remarks in an Oval Office interview with the Daily Caller hours after his Supreme Court nominee, Brett M. Kavanaugh, was greeted by protests on the first day of his confirmation hearings on Capitol Hill.

washington post logoWashington Post, Trump’s Supreme Court nominee faces grilling by senators, Seung Min Kim, Ann E. Marimow and Elise Viebeck​, Sept. 5, 2018. Judge Brett M. Kavanaugh is expected to face aggressive questions from Democrats on executive power, abortion rights, gun regulations and health care as his confirmation hearing continues before the Senate Judiciary Committee.

washington post logobrett kavanaughWashington Post, Ten issues likely to come up on Day 2 of the Kavanaugh hearings, Ann E. Marimow and Michael Kranish​, Sept. 5, 2018. Questions could span the course of Brett M. Kavanaugh’s long career in Washington — from his tenure as a member of independent counsel Kenneth W. Starr’s team in the 1990s to the George W. Bush White House to the 12 years he has spent as a federal judge.

School Safety

john donohue headshot

cnn logoCNN, Opinion: Brett Kavanaugh won't keep Americans safe, John J. Donohue, Sept. 5, 2018. John Donohue, above, is an economist, lawyer and professor at Stanford Law School. As the country reels from an unprecedented number of mass shootings in the past year, public support for prudent legislative action is about to slam into a jarring reality. Nearly every important state and local gun law is imperiled by the prospect of the elevation of Judge Brett Kavanaugh to the US Supreme Court.

In a stunning triumph of what former conservative Republican Chief Justice Warren Burger once referred to as the NRA's "fraud on the American people," the US Supreme Court's 5-4 District of Columbia v. Heller decision in 2008 ignored text, history and tradition in disregarding the Second Amendment's reference to a "well-regulated militia." It held that the amendment should instead be read to grant a private right to have a handgun in the home.

antonin scaliaThe late Justice Antonin Scalia's majority opinion was deemed an incoherent "snow job" by Reagan-appointed federal appeals court Judge Richard Posner. Fortunately, the lower courts have largely recognized that the decision should not be read expansively to impose a straitjacket on legislative efforts to deal with the serious US problem of gun violence -- unique among developed countries.

For example, two Republican-appointed judges on the DC Court of Appeals ruled in 2011 that the Second Amendment was not an impediment to the District's ban on assault weapons and large capacity magazines, let alone its entirely sensible gun registration regime. But Kavanaugh disagreed, writing a dissent that embodied the worst features of the historical amnesia, misguided originalism and imprudent judicial decision making of Scalia's Heller decision.

The FBI recently reported that the 30 active shooter incidents in 2017 set a US record for both the highest number and the greatest number killed and wounded. A substantial majority of Americans support stricter gun laws, and nearly everyone wants universal background checks. Since the Parkland shooting left 17 students and teachers dead and many injured, a handful of states have taken much-needed strides to address gun violence, and stories abound about the new energy that students are bringing to the legislative forum on this issue.

But if Kavanaugh becomes the newest Supreme Court justice, it may all be for naught. Working largely below the public's radar, the NRA has been suing every jurisdiction from Hawaii and California to Maryland and New Jersey to overturn restrictions on large-capacity magazines and assault weapons, as well as safe storage laws and restrictions on carrying guns in public.

Internal Trump Opposition?

ny times logoNew York Times, From Opinion: I Am Part of the Resistance Inside the Trump Administration, Anonymous, Sept. 5, 2018. I work for the president, but like-minded colleagues and I have vowed to thwart parts of his agenda and his worst inclinations, our anonymous contributor writes.

Times Editor's Note: The Times today is taking the rare step of publishing an anonymous Op-Ed essay. We have done so at the request of the author, a senior official in the Trump administration whose identity is known to us and whose job would be jeopardized by its disclosure. We believe publishing this essay anonymously is the only way to deliver an important perspective to our readers. We invite you to submit a question about the essay or our vetting process here.

Sept. 4

washington post logoWashington Post, Kavanaugh hearing devolves into political brawl; GOP’s Grassley refuses to delay, John Wagner, Seung Min Kim and Ann E. Marimow, Sept. 4, 2018. At the outset, Democrats repeatedly interrupted the opening statement of Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) — as protesters in the room heckled the senators — and sought to adjourn. Related column: Washington Post, The Fix: Democrats’ surprise, coordinated attack to tank Kavanaugh’s nomination, Sept. 4, 2018.

washington post logoWashington Post, Trump shows fresh disdain for the rule of law as confirmation hearings begins, James Hohmann with Breanne Deppisch and Joanie Greve, Sept. 4, 2018. An 11th-hour document dump highlights how much still isn’t known about Trump’s pick.

Brett Kavanaugh, whose confirmation hearing to join the Supreme Court begins today, was one of George W. Bush’s attorneys during the 2000 recount. His lawyering in Florida, combined with his background as a Republican operative, landed him a plum job in the White House, which in turn helped him score an appointment to the D.C. Circuit — the second most powerful court in America.

The decision remains in dispute 18 years later. Senate Democrats are unlikely to focus on Bush v. Gore during this week’s confirmation hearing because they don’t want to look like sore losers, and there is evidence that Bush would have narrowly prevailed if there had been a complete statewide recount. But it's nonetheless a timeless reminder not just that every justice counts, but also that the judiciary’s legitimacy depends on leaders of the executive and legislative branches respecting even decisions they disagree with.

Times Editor's Note: The Times today is taking the rare step of publishing an anonymous Op-Ed essay. We have done so at the request of the author, a senior official in the Trump administration whose identity is known to us and whose job would be jeopardized by its disclosure. We believe publishing this essay anonymously is the only way to deliver an important perspective to our readers. We invite you to submit a question about the essay or our vetting process here.

fred guttenberg jamie guttenberg parkland sept 4 2018 Andrew HarnikAP

Trump Court nominee Kavanaugh snubs murdered Parkland shooting victim's father Fred Guttenberg at Sept. 4 hearing (Associated Press photo by Andrew Harnik)

Common Dreams, Opinion: This Is Who Brett Kavanaugh Is, Abby Zimet, Sept. 5, 2018. Among his other egregious traits -- rabid abortion opponent, fan of unconstrained presidential chutzpah, foe of the environment and longtime supporter of gun rights and especially assault weapons, whose confirmation, coincidentally, the NRA is spending over a million bucks to ensure -- there's this:

At his Tuesday hearing, purported devoted family man and "just such a nice person" Brett Kavanaugh refused to shake the hand of Fred Guttenberg, father of Parkland shooting victim Jamie Guttenberg, who has spent his grievous days, and likely nights, since his daughter was gunned down working tirelessly to ensure that other people's kids won't be.

Guttenberg described the moment: "Put out my hand to introduce myself as Jaime Guttenberg's dad. He pulled his hand back, turned his back to me and walked away. I guess he did not want to deal with the reality of gun violence."

When word of the ugly snub spread, the White House tried to blame Capitol Police, who later interrogated Guttenberg (WTF?), for intervening; they also claimed Guttenberg was an “unidentified individual,” though he'd earlier been introduced to the gathering by Dianne Feinstein.

In the fiery words of Emma Gonzales, we call bullshit. Photos and video of the encounter, complete with the clear contempt on Kavanaugh's face, expose the brutal truth: He's just a(nother) scumbag without heart, soul or moral compass.

ny times logoNew York Times, Times Publishes Op-Ed From ‘Resistance’ Administration Official. Trump Calls It ‘Gutless,’ Peter Baker and Maggie Haberman, Sept. 5, 2018. President Trump denounced what he called a “gutless editorial” posted by The New York Times on Wednesday, an essay written by an unnamed administration official claiming that advisers to the president were deliberately trying to thwart his “reckless decisions” from the inside.

At an event at the White House, Mr. Trump angrily assailed The Times for publishing the Op-Ed column, the second time in two days that news reports highlighted the way that some members of his team quietly seek to undermine the president when they believe he may be acting dangerously.

The column, written by an unnamed senior administration official, claimed that some of those close to the president were working to thwart his “misguided impulses.” Editors in The Times opinion section took the rare step of publishing a column without naming the author because of the significance of the subject.

ny times logoNew York Times, Nike’s Kaepernick Ad Set to Air on N.F.L.’s Opening Telecast, Kevin Draper, Sept. 5, 2018. Any questions about whether Nike might quickly back away from its decision to embrace the polarizing quarterback Colin Kaepernick amid threats of a boycott and criticism from President Trump dissipated on Wednesday when the company released a two-minute advertisement narrated by him and announced plans to have it run during the N.F.L.’s first telecast of the regular season.

The ad, called “Dream Crazy,” features Mr. Kaepernick and other star athletes in the Nike stable, including Serena Williams and LeBron James. It implores viewers to dream big, using the inspiring stories of those stars and of everyday weekend warriors who overcame illness or disability to triumph athletically.

“Believe in something, even if it means sacrificing everything,” Mr. Kaepernick says over images of him watching a waving American flag projected against a building. Those words appeared in an ad that was released on Monday announcing Nike’s new partnership with Mr. Kaepernick and on a billboard of him that went up in San Francisco on Tuesday.

“Nike’s ‘Dream Crazy’ campaign will air this week during sporting events such as the U.S. Open, M.L.B. and college football in addition to ‘Thursday Night Football,’ ” Josh Benedek, a Nike spokesman, said.

Sept. 3

washington post logobrett kavanaugh confirmation hearing 2004 CustomWashington Post, Democrats’ view of Kavanaugh shaped by bitter 2004 hearing, Michael Kranish, Sept. 3, 2018 (print edition). When former President George W. Bush nominated Brett Kavanaugh (shown during testimony then) for a federal circuit judgeship, Kavanaugh’s work on partisan missions put him at odds with Democrats. But the strategy Democrats used then to block his nomination for three years will no longer be available to them as Kavanaugh’s Supreme Court hearings begin Tuesday.

wsj logoWall Street Journal, Key Question in Senate Hearings: Would Kavanaugh Overturn Supreme Court Precedents? Brent Kendall, Sept. 3, 2018. Senators expected to focus on Trump nominee’s position on landmark decisions involving abortion and other hot-button issues.

With Judge Brett Kavanaugh’s Supreme Court confirmation hearings set to begin Tuesday, partisans on both sides are focusing on one of the most consequential questions surrounding his nomination: Whether he would stand firm with precedents set by landmark rulings or be willing to overturn them.

Politico, Democrats’ last shot at stopping Trump’s Supreme Court pick, Adam Cancryn, Sept. 3, 2018. If they can’t beat Kavanaugh, they’ll use his conservative views to fuel their 'blue wave.'

The long-shot path to killing Brett Kavanaugh’s Supreme Court nomination runs through the heart of the American health care system — and right into the November midterm elections. Senate Democrats prepping for this week’s marathon confirmation hearings are zeroing in on the health care views of the man who could pull the nation’s high court to the right for a generation — and determine the fate of abortion rights, the social safety net and Obamacare itself, possibly within months.

ny times logoNew York Times, How Brett Kavanaugh Would Transform the Supreme Court, Adam Liptak, Sept. 3, 2018 (print edition). Most confirmation hearings concern nominees who would not change the court’s basic direction. That is not the case with the nomination of Judge Brett M. Kavanaugh, whose Senate confirmation hearings will begin on Tuesday.

william burck cnn

ny times logoNew York Times, Coveted Lawyer’s Juggling Act May Be Good for Trump, and Bad, Michael D. Shear and Michael S. Schmidt, Sept. 3, 2018 (print edition). William Burck, shown above in a screengrab, is deciding which documents about Judge Kavanaugh can be released. He also represents White House officials in the special counsel inquiry.

Sept. 2

washington post logobrett kavanaughWashington Post, Issues for Kavanaugh: The president who chose him and the court he would change, Robert Barnes, Sept. 2, 2018 (print edition). As Supreme Court confirmation hearings for Brett M. Kavanaugh, right, begin Tuesday, abortion, affirmative action, religion and gay rights are among the issues at stake. But the hearings also come as the powers of a special prosecutor to investigate the president are part of a national debate, with decisions on executive power possibly awaiting the high court.

washington post logoWashington Post, Trump to withhold 100,000 pages of Kavanaugh’s White House records, Seung Min Kim, Sept. 2,  2018 (print edition). The president claimed executive privilege in his decision to not release the records from Supreme Court nominee Brett M. Kavanaugh’s tenure in the George W. Bush White House. The move drew criticism from Democrats, who have pushed for more disclosure ahead of confirmation hearings.

washington post logoWashington Post, The key players in the Kavanaugh hearings — and what’s at stake for each of them, Amber Phillips, Sept. 2, 2018. The Senate hearings to confirm Supreme Court nominee Brett M. Kavanaugh take place in a uniquely hyperpartisan political moment.


Aug. 22

More Pressure On Kavanaugh

washington post logobill clinton wWashington Post, Senate Democrats want to know whether Kavanaugh crossed line as a source during Clinton probe, Tom Hamburger, Robert Barnes and Robert O'Harrow Jr., Aug. 22, 2018. The senators are exploring whether the Supreme Court nominee violated federal rules in his private communications with outsiders during Kenneth Starr’s wide-ranging investigation of Bill and Hillary Clinton.

During independent counsel Kenneth W. Starr’s tumultuous investigation of President Bill Clinton in the 1990s, there were loud objections and even lawsuits filed over Clinton’s complaints that information meant to be kept secret was being leaked to the press by Starr’s staff.

Among those guiding the journalists and authors was a young lawyer named Brett M. Kavanaugh, now a federal judge and President Trump’s nominee to the Supreme Court.

washington post logoWashington Post, Citing Cohen plea, Senate Democrats seek delay in Kavanaugh hearings, John Wagner and Mike DeBonis, Aug. 22, 2018. Senate Democrats on Wednesday called for delaying confirmation hearings for Supreme Court nominee Brett M. Kavanaugh in the wake of a guilty plea by Michael Cohen, President Trump’s former attorney, on campaign-finance counts that involve the president.

Democrats, who have been seeking leverage to slow down Kavanaugh’s consideration, argued that a new justice could be forced to decide questions directly relating to Trump, including whether he must comply with a subpoena from prosecutors and whether he can be indicted while in office.

susan collins oSCOTUSblog, Wednesday round-up, Edith Roberts, Aug. 22, 2018.  For The Washington Post, Elise Viebeck and Gabriel Pogrund report that “[a] Republican senator whose vote could ensure the confirmation of Supreme Court nominee Brett M. Kavanaugh” — Sen. Susan Collins of Maine – “offered an upbeat assessment of their meeting Tuesday, highlighting the judge’s statement that the Roe v. Wade decision legalizing abortion is ‘settled law.’”

Additional coverage comes from Scott Detrow at NPR , Natalie Andrews and Byron Tau for The Wall Street Journal, Sheryl Gay Stolberg for The New York Times, and the Associated Press. At The Hill, Tal Axelrod reports that “[a] Public Policy Polling survey released Tuesday shows a plurality of Maine voters want … Collins … to reject Judge Brett Kavanaugh’s nomination to the Supreme Court and many will be less likely to support her for reelection if she votes to confirm him.”

Megan Keller reports at The Hill that “Sen. Sheldon Whitehouse (D-R.I.) on Tuesday said that he thinks a ‘smelly special interest network’ of dark money was involved in Supreme Court nominee Brett Kavanaugh’s nomination process.”

In an op-ed for The Hill, Steven Calabresi refutes “criticism of Judge Brett Kavanaugh’s nomination to the Supreme Court [charging] that his references to constitutional originalism suggest he would reach a series of bad results in certain cases.”

At Slate, Mark Joseph Stern suggests that “[a]side from the looming election,” “there is one clear reason” why the Republicans are “so eager to push through Kavanaugh’s nomination before the documents [from the nominee’s days in the White House counsel’s office] are released”: “The Supreme Court has stacked its October docket with major cases that will require Kavanaugh’s vote for a conservative victory.”

Aug. 20

washington post logoWashington Post, Brett Kavanaugh memo detailed explicit questions for Clinton, Michael Kranish, Aug. 20, 2018. Brett Kavanaugh wrote in a strikingly explicit 1998 memo that he was “strongly opposed” to giving then-President Bill Clinton any “break” in the independent counsel’s questioning about his sexual relationship with intern Monica Lewinsky, according to a document released Monday. [Read the memo from Brett Kavanaugh]

In the memo, Kavanaugh, who worked as an associate counsel for independent counsel Ken Starr and is now President Trump’s nominee for the U.S. Supreme Court, laid out several proposed questions, including, “If Monica Lewinsky says that you inserted a cigar into her vagina while you were in the Oval Office area, would she be lying?”

Excerpts of the memo have been previously reported, including by The Washington Post last month, quoting from a book about the Lewinsky investigation. However, the full memo had not been released until Monday, when it was released by the National Archives in response to a Freedom of Information Act request by The Post.

Aug. 17

ny times logoNew York Times, Why Cover Up Brett Kavanaugh’s Past? Editorial Board, Aug. 17, 2018. For the first time in modern history, Republicans are refusing to request a Supreme Court nominee’s relevant papers. Judge Brett Kavanaugh’s supporters have spent the last month lavishing him with acclaim. He’s a legal superstar, they say, one of the most qualified Supreme Court nominees in history. So why are Senate Republicans so afraid of letting Americans learn more about him?

After what they did to Judge Merrick Garland in 2016 — obliterating Senate tradition by outright ignoring President Barack Obama’s third Supreme Court nomination for partisan political gain — you might think it would be hard for Mitch McConnell, the Senate majority leader, and Chuck Grassley, chairman of the Judiciary Committee, to inflict any more damage on the court.

brett kavanaugh.judgeLSurprise! They’re now running the most secretive and incomplete confirmation process in modern history. They scrambled to set the start of Judge Kavanaugh’s confirmation hearing for Sept. 4, even as they have refused multiple requests by their Democratic colleagues to see more than one million documents covering his years as White House staff secretary to President George W. Bush. Judge Kavanaugh, right, has called that job, which he held from 2003 to 2006, “the most interesting and informative” of his career in terms of preparing for his work on the bench.

These documents could contain important information about his role in some of the Bush administration’s most controversial actions, including its warrantless wiretapping program and its torture policy. Judge Kavanaugh was evasive during his 2006 confirmation hearing for a seat on the federal appeals court in Washington, D.C., where he currently sits. He denied any involvement in those policies, but Democratic senators have long believed that his answers to them were, at best, misleading. And at least one former Bush official appeared to directly contradict him. So what was his true role? The documents may or may not answer that question definitively, but we’ll never know without seeing them.

Aug. 17

brett kavanaughAlliance for Justice, Opinion: Republicans “Running a Scam” to Confirm Kavanaugh, Bill Yeomans, Aug. 17, 2018. AFJ Justice Fellow Bill Yeomans writes that Senate Republicans are short-circuiting the normal confirmation process for Supreme Court nominee Brett Kavanaugh, by moving ahead without obtaining all the relevant documents from his career -- and he minces no words.

Yeomans notes:

"The Republican Senate majority is running a scam to ram through confirmation of Brett Kavanaugh without the scrutiny that is essential to our constitutional health. Republicans are panicking…polling shows that a majority of the public already opposes Kavanaugh’s confirmation. Senate Republicans understand that the more the public learns about the nominee and his positions and the longer the Senate and public have to consider the nomination, the less popular he will become."

Adding his voice to the chorus of those demanding that Republicans stop taking irresponsible shortcuts, Yeomans concludes that the Senate "must take the time to gather and release all of the records."

Aug. 16

New York Magazine, Opinion: Poll: Kavanaugh Is the Most Unpopular Court Pick in Decades, Eric Levitz, Aug. 16, 2018. The conservative movement’s judicial agenda is extremely unpopular. This is, in part, because the movement recognizes that some of its goals are too politically toxic to advance through the more democratic branches of the federal government, and thus, seeks to implement them through litigation. Congress would have had a difficult time clearing the way for unlimited corporate spending on American elections, or gutting the Voting Rights Act of 1965, or legalizing most forms of political bribery, or hobbling public-sector unions — but the Roberts court had no such trouble.

brett kavanaughAnd yet, historically, the unpopularity of conservative jurisprudence has rarely put a dent in the in the public image of conservative judicial nominees.

Democratic voters have traditionally followed the lead of their party’s elites, and judged Republican presidents’ Supreme Court picks on the strength of their professional qualifications, rather than their ideological commitments. John Roberts and Samuel Alito are two of the most radically reactionary Supreme Court justices in our nation’s modern history, and yet both enjoyed overwhelming public support when their nominations were brought before the Senate. Even last year, in our hyperpolarized epoch, when Donald Trump announced his intention to put Neil Gorsuch into Merrick Garland’s rightful Supreme Court seat, 49 percent of Americans said that the Senate should confirm him, while just 36 percent said it should not.

All of which makes this new CNN poll remarkable: A plurality of American voters currently want the Senate to reject Brett Kavanaugh’s nomination to the Supreme Court. In the past three decades, no high court nominee has ever attracted plurality opposition in initial polling — and only Robert Bork suffered a lower level of opening support.

Aug. 11

washington post logoWashington Post, Analysis: Democrats all but acknowledge Kavanaugh is headed toward confirmation to Supreme Court, Sean Sullivan​, Aug. 11, 2018 (print edition). The Senate is poised to install Brett M. Kavanaugh on the high court and take the next step toward fulfilling President Trump’s pledge to remake the Supreme Court — and the wider federal judiciary, potentially for decades.

Aug. 8

todd henderson university of chicagoUniversity of Chicago Maroon, UChicago Law Prof Says Sotomayor Got on Court Because She’s Latina, Wipes Twitter, Maroon Staff, Aug. 8, 2018. Conservative sonia sotomayor in scotus robe1University of Chicago Law Professor M. Todd Henderson, right, said in a tweet Tuesday that Justice Sonia Sotomayor was appointed to the Supreme Court because “her Latinaness gave us insight into her soul.”

His tweet, which said she is a “second-class intellect,” immediately drew sharp criticism from members of the University community and beyond. Some questioned how Henderson was a professor at the Law School; one user wrote, “Your dumb ass couldn’t get onto the food court.”

After initially fighting back against his critics, Henderson issued a half-apology Tuesday evening, again via tweet. He said that having another woman and Hispanic on the Court was a good thing, but argued that there are dozens of appeals court judges “smarter” than Justice Sotomayor, shown at left. Still, he said, if he were a senator he would have confirmed her to the Court.

Aug. 6

SCOTUSblog, Monday round-up, Edith Roberts, Aug. 6, 2018. We round up the latest news on Judge Brett Kavanaugh (shown at right), including speculation on documents from his time in President George W. Bush’s administration and a debate over whether Democrats should support his confirmation when they disapprove on the merits.

brett kavanaugh confirmation hearing 2004 CustomAt BuzzFeed News, Chris Geidner and Jason Leopold report that “[i]n the midst of a growing fight over what documents senators will see from Supreme Court nominee Brett Kavanaugh’s five years in the George W. Bush White House, a narrow glance into three months of Kavanaugh’s communications with just one office at the Justice Department shows that he worked on key questions involving the president’s power to keep documents from Congress and the public, as well as important legislation in the aftermath of the Sept. 11 attacks.”

For the Washington Post, Seung Min Kim reports that “Senate Democrats will begin meeting with Supreme Court nominee Brett M. Kavanaugh to press him privately on releasing his papers, … after Democrats had boycotted these sit-downs for weeks amid a document dispute with Republicans.” At Jost on Justice, Kenneth Jost asserts that “the Republicans’ prime movers on judicial confirmations — Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley — are adopting tactics that flatly contradict their stances on President Obama’s last two Supreme Court nominations.”

For the New York Times, Michael Shear and Adam Liptak take a close look at Kavanaugh’s experience working on independent counsel Kenneth Starr’s investigation of President Bill Clinton, “an immersion course in the brutal ways of Washington combat.”

Aug. 3

washington post logobrett kavanaughWashington Post, Senate Democrats to end boycott, plan to meet with Kavanaugh later this month, Seung Min Kim, Aug. 3, 2018. Senate Democrats will begin meeting with Supreme Court nominee Brett M. Kavanaugh, right, to press him privately on releasing his papers, a senior Democratic aide said Friday, after Democrats had boycotted these sit-downs for weeks amid a document dispute with Republicans.

Senate Minority Leader Charles E. Schumer (D-N.Y.) and Sen. Dianne Feinstein (Calif.), the top Democrat on the Judiciary Committee, had held off scheduling the traditional one-on-one sessions as they tussled with Republicans over releasing documents from Kavanaugh’s voluminous paper trail, primarily from his time in the George W. Bush White House.

But Schumer and Feinstein will start meeting with President Trump’s pick to succeed retired justice Anthony M. Kennedy after the Senate returns from its truncated recess Aug. 15, a senior Senate Democratic aide said. They will press Kavanaugh on releasing his papers from his tenure as Bush’s staff secretary — which Republicans argue are irrelevant in assessing his fitness to be a justice — and “question him about their contents.”

Republicans have agreed to release only papers from Kavanaugh’s time as associate White House counsel, which span two of the five years he served under Bush. Democrats made a separate request to the National Archives to release the staff secretary records, but the Archives rebuffed their request in a letter dated Thursday. The Archives said only the chairman of a committee can make such a documents request.

The National Archives has started reviewing Kavanaugh’s documents from his time as associate White House counsel but said it won’t finish going through all of them until late October. Still, Senate Republicans plan to go ahead with confirmation hearings in September, as a private legal team led by Bush’s presidential records representative conducts a separate review of Kavanaugh’s paperwork and provides them to the Senate.

Schumer raised concerns Friday that this separate process means neither the public nor senators outside of those on the Judiciary Committee would be able to see Kavanaugh’s records.

“This unprecedented effort on the part of Republicans to keep hidden Judge Kavanaugh’s records from the American public, and even the large majority of senators, is a new and astonishing level of secrecy,” Schumer said in a statement.

Aug. 2

U.S. Supreme Court: Kavanaugh

SCOTUSblog, Thursday round-up, Edith Roberts, Aug. 2, 2018. At CNN, Lauren Fox reports that “Iowa Republican Sen. Chuck Grassley, the chairman of the powerful Senate Judiciary Committee, said Wednesday that he hopes to have President Donald Trump’s Supreme Court nominee [Brett Kavanaugh] confirmed by the Senate by early October and that hearings are most likely to begin sometime in September.”

For The Washington Times, Alex Swoyer reports that “[a] Christian women’s organization announced Wednesday it’s launching a bus tour in eight states to rally support” for Trump’s nominee. Brett Samuels reports at The Hill that “Capitol Police charged 74 people on Wednesday in connection with a protest in the Senate office building against … Kavanaugh.” jeffrey toobin

At The New Yorker, Jeffrey Toobin, right, urges liberals wondering “whether it’s even worthwhile … to fight [Kavanaugh’s] nomination” “to remember that fighting Supreme Court nominees, even against formidable odds, can succeed — and produce a better Court than anyone might have expected.”

Aug. 1

washington post logoWashington Post, ‘Unprecedented partisan interference’: Senate escalates bitter fight over Kavanaugh’s record, Seung Min Kim​, Aug. 1, 2018 (print edition). Democrats want to review material from the Supreme Court nominee’s time as as an associate White House counsel during the administration of George W. Bush, as well as Brett Kavanaugh’s years as staff secretary. Republicans call it an irrelevant fishing expedition.



July 31

Consortium News, Opinion: In Shielding US from Legal Obligations, Kavanaugh Conflates International Law with Foreign Laws. Marjorie Cohn, July 31, 2018. Supreme Court nominee Brett Kavanaugh has nothing but contempt for international law. But he has shown uncritical deference to executive power, particularly in the so-called war on terror cases, argues Marjorie Cohn. For 12 years, while serving as a judge on the D.C. Circuit Court of Appeals, Kavanaugh had the opportunity to rule on several cases stemming from the “war on terror.” In nearly all of them, he demonstrated nothing but disdain for international law and an uncritical deference to executive power.

July 30

Bloomberg, Kavanaugh Sided With Trump Casino in 2012 to Thwart Union Drive, Josh Eidelson, ‎July‎ ‎30‎, ‎2018. Six years before President Donald Trump nominated him for the Supreme Court, Judge Brett Kavanaugh sided with Trump Entertainment Resorts’ successful effort to thwart a unionization drive at one of its casinos.

Kavanaugh was one of three Republican-appointed judges who in 2012 voted unanimously to set aside an order by the National Labor Relations Board that would have required the Trump Plaza Hotel and Casino in Atlantic City, New Jersey, to bargain with the United Auto Workers.

The casino has since shut down. But labor advocates point to the case -- as well as ones where he backed management at Sheldon Adelson’s Las Vegas Venetian hotel and at SeaWorld after an orca killed a worker -- as evidence that Kavanaugh may hobble enforcement of workplace laws and the already-embattled union movement.

"Kavanaugh, along with Thomas, Alito, Gorsuch -- and Roberts along for the ride -- will comprise the most radical, anti-labor-law Supreme Court in my lifetime," said University of Wyoming law professor Michael Duff, a former attorney for the NLRB, ticking off the names of current members of the high court.

Kerri Kupec, a White House spokeswoman for Kavanaugh’s confirmation effort, said, “Judge Kavanaugh’s 12-year-record in labor cases reflects his reputation as a fair and independent arbiter of the law, based on text and precedent, who has ruled for both employers and employees alike.”

July 29

washington post logosusan collins oWashington Post, Analysis: Collins and Murkowski find pressure over Supreme Court lacks emotional pleas on health care, Paul Kane, July 29, 2018 (print ed.). Liberals are targeting the two moderate GOP senators who stopped the repeal of the Affordable Care Act last year, hoping they will break ranks and defeat high court nominee Brett M. Kavanaugh. U.S. Sen. Susan Collins, a Maine Republican, is shown at right.

July 27

djt brett kavanaugh family 7 9 18 Small

President Trump introduces Supreme Court nominee Brett Kavanaugh and his family on July 9 at the White House

washington post logoWashington Post, Opinion: Kavanaugh won’t protect Mueller. His writings prove it, Richard Blumenthal, July 27, 2018 (print ed.). richard blumenthal portraitRichard Blumenthal, right, a former Supreme Court law clerk and editor in chief of the Yale Law Journal, is a U.S. senator from Connecticut and a former presidentially appointed U.S. attorney and attorney general for that state.

Recent days have left many Americans with a burning question: Does Vladimir Putin have something on President Trump? The investigation led by special counsel Robert S. Mueller III offers the most realistic opportunity to answer that question. But the likelihood of that happening may have taken a hit when the president nominated to the Supreme Court someone whose writing suggests that he thinks presidents should be able to fire special counsels for any reason or no reason at all.

The president may also take comfort from Judge Brett M. Kavanaugh’s observation during a 1999 panel discussion that United States v. Nixon — the unanimous, landmark 1974 Supreme Court opinion forcing President Richard M. Nixon to turn over secretly recorded White House tapes — may not be good law. Even more unsettling than Kavanaugh’s skepticism on that score was his speculation that Nixon might deserve to “be overruled on the ground that the case was a nonjusticiable intrabranch dispute.”

Kavanaugh was thus lending credence to the Nixon White House’s argument that because the Justice Department is part of the executive branch, it has no authority to compel the president to release information relevant to a criminal case. Under this theory, presidents would not only be free to reject burdensome, unfair or otherwise problematic requests for information; they would also be free to reject all requests for information.

July 24

alex kozinski c span nov 2014 Custom

Show above is a C-SPAN screenshot from a 2014 lecture at the National Press Club by then federal appeals court judge Alex Kozinski

washington post logoWashington Post, Judge who quit over harassment allegations reemerges, dismaying those who accused him, July 24, 2018. Some former clerks to Alex Kozinski and other women said they feared the retired federal appeals court judge was being allowed to reenter the legal community without a complete reckoning.

Alex Kozinski had largely retreated from public life since allegations of sexual misconduct prompted him to retire as a federal appeals court judge last year. Even as his case sparked changes in how the judiciary handles harassment, the outspoken jurist remained silent — never addressing specific accusations that he showed clerks explicit images in his chambers or touched women inappropriately.

But earlier this month, Kozinski tiptoed back into public view, sitting for an hour-long interview with a public radio station in California and writing a tribute in a legal-industry publication to retired Supreme Court justice Anthony M. Kennedy. Then President Trump nominated Brett M. Kavanaugh, one of Kozinski’s former clerks and professional friends, to a seat on the high court.

Kozinski was suddenly back in the spotlight, and the legal and political worlds were left to wrestle with the aftershocks of his fall from grace.

July 23

ny times logoNew York Times, Brett Kavanaugh Will Fit Right In at the Pro-Corporate Roberts Court, Editorial Board, July 23, 2018 (print ed.). President Trump’s choice for the latest Supreme Court vacancy will continue a trend toward widening America’s power and wealth gaps.

Corporate interests haven’t had it so good at the Supreme Court in a long time. Under Chief Justice John Roberts Jr. the court has given big business a leg up on workers, unions, consumers and the environment — and will do so even more aggressively if the Senate confirms Brett Kavanaugh, shown at right in a 2004 judicial confirmation hearing, President Trump’s choice to replace Justice Anthony Kennedy.

brett kavanaugh confirmation hearing 2004 CustomCorporations won the power to spend unlimited amounts of money on political campaigns in the 2010 Citizens United decision. The owners of businesses have earned the right to cite their personal religious beliefs to deprive workers of reproductive health care. At the same time, the justices have made it harder for employees and customers to sue big businesses by allowing corporations to require mandatory arbitration clauses in contracts people are forced to sign if they want jobs or want to buy goods and services. The court has also made it easier for polluters to get away with poisoning the air and water.

In many of these decisions the five conservative justices have shown no restraint in rejecting judicial precedent and in substituting their own judgment for that of lawmakers.

Just last month, in a blow to public-sector unions with contracts covering nearly seven million workers, their 5-to-4 ruling dismissed a unanimous 40-year-old decision that state governments and unions had long relied on. In the recent case, Janus v. American Federation of State, County and Municipal Employees, the court held that government workers covered by union contracts do not have to pay fees for collective bargaining expenses if they are not members.

The ruling does not directly involve businesses. But it will hurt all workers because benefits won by unions often establish benchmarks that help improve wages and working conditions even at companies without unions.

July 22

ny times logoNew York Times, How a Failed Judicial Nomination Could Affect Kavanaugh, Carl Hulse, July 22, 2018 (print ed.). Senators expect the collapse of Ryan W. Bounds’s nomination to have major implications for the Senate and the coming showdown over the nomination of Judge Brett M. Kavanaugh to the Supreme Court.

tim scott oMr. Bounds’s nomination was pulled after Senator Tim Scott, right, of South Carolina, the only black Republican senator, made clear he would not vote for him because of the writings, despite a hastily arranged face-to-face meeting with the nominee. Senator Marco Rubio, Republican of Florida, quickly sided with his close friend Mr. Scott, and other Republicans also signaled that they would vote against Mr. Bounds.

His nomination was scratched to avoid an embarrassing defeat for President Trump, a rare setback in the administration’s determined march to put conservatives on federal courts around the country. Mr. Bounds was to be named to the United States Court of Appeals for the Ninth Circuit, a court dominated by liberal jurists that has been a particular thorn in the side of Mr. Trump.

The outcome underscored just how narrow a margin that Senator Mitch McConnell, the Kentucky Republican and majority leader, has to work with when it comes to Judge Kavanaugh. Because of the continued absence of Senator John McCain, the Arizona Republican being treated for brain cancer, the defection of a single Republican can doom a nominee if Democrats remain united in opposition.

richard blumenthal portraitAnd Democrats pounced on the fact that Mr. Bounds was undone by long-ago writings, saying the episode legitimized their demand that all documents from Judge Kavanaugh’s past work in government should be disclosed, even though it might be a ponderous task to produce them and take weeks to review them.

“This nomination’s defeat is a sign of inadequate vetting and excessive haste,” said Senator Richard Blumenthal, left, a Connecticut Democrat who sits on the Judiciary Committee. “It should stand as a rebuke to my Republican colleagues who are seeking to severely constrict review of Judge Brett Kavanaugh’s nomination to the Supreme Court. Restricting documents chuck grassley officialand time is a great mistake for lifetime judicial appointments.”

Democrats want access to hundreds of thousands of documents and emails from Mr. Kavanaugh’s service in the administration of George W. Bush, and Republicans are resisting. Senator Charles E. Grassley, right, the Iowa Republican who is the chairman of the Judiciary Committee, says that he won’t allow a “government-funded fishing expedition,” and notes that many Democrats have already vowed to oppose the nomination without seeing any records.

July 21

ap logoAssociated Press via Chicago Tribune, SCOTUS nominee Kavanaugh questioned Watergate tapes decision, Mark Sherman, July 21, 2018. Supreme Court nominee Brett Kavanaugh suggested several years ago that the unanimous high court ruling in 1974 that forced President Richard Nixon to turn over the Watergate tapes, leading to the end of his presidency, may have been wrongly decided.

Kavanaugh was taking part in a roundtable discussion with other lawyers when he said at three different points that the decision in U.S. v. Nixon, which marked limits on a president's ability to withhold information needed for a criminal prosecution, may have come out the wrong way.

A 1999 magazine article about the roundtable was part of thousands of pages of documents that Kavanaugh has provided to the Senate Judiciary Committee as part of the confirmation process. The committee released the documents on Saturday.

Kavanaugh's belief in robust executive authority already is front and center in his nomination by President Donald Trump to replace the retiring Justice Anthony Kennedy. The issue could assume even greater importance if special counsel Robert Mueller seeks to force Trump to testify in the ongoing investigation into Russian interference in the 2016 election.

"But maybe Nixon was wrongly decided — heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently...Maybe the tension of the time led to an erroneous decision," Kavanaugh said in a transcript of the discussion that was published in the January-February 1999 issue of the Washington Lawyer.

DCDave Blog, Opinion: Christopher Ruddy on Brett Kavanaugh, David Martin, July 21, 2018. Christopher Ruddy is the Long Island, New York, native who is the CEO of the media organization Newsmax, regularly sought out for interviews by the mainstream press because he keeps the company of his neighbor in Palm Beach, Florida, President Donald Trump and is one of his closest informal advisers.

vincent foster oRuddy first rose to prominence, though, as the only American reporter raising doubts about the mysterious July 20, 1993, death of President Bill Clinton’s deputy White House Counsel, Vincent W. Foster, Jr., shown at right. His first critical article appeared in the New York Post on January 27, 1994. In 1997 he would publish a book entitled The Strange Death of Vincent Foster: An Investigation. (Amazon used to tout my review of that book as the leading one, based upon the number of viewers finding it “helpful,” which it still is, but they have now deeply buried it away.)

Writing critically on the Vince Foster case, Ruddy could hardly avoid talking about young Brett Kavanaugh, who took over as Independent Counsel Kenneth Starr’s lead investigator after the resignation in disgust of Miguel Rodriguez. In the long passage below, we pick up the story on page 240 of Ruddy’s book.

He is talking about the troublesome witness, Patrick Knowlton, who had been tracked down by the British reporter, Ambrose Evans-Pritchard. Knowlton had happened by Fort Marcy Park where Foster’s body was found on the afternoon of July 20, where Knowlton had stopped in to take an emergency leak. Hearing on television that night about the discovery of the body there, he had done his civic duty and called the Park Police to tell them what he had seen. They had demonstrated little interest, taking only a short statement from him....

When Knowlton appeared before the grand jury the following week, Brett Kavanaugh, one of Starr’s prosecutors who (according to his official biography) had never prosecuted a case before, was doing the interrogation. Kavanaugh, a Yale graduate, was seen as one of the rising stars on the team: extremely bright, an establishment man in his late twenties with Harrison Ford looks and a demeanor to match.

Knowlton would later recount that during the proceedings he “was treated like a suspect,” with Kavanaugh focusing more on his character than on the potentially valuable information he had to offer. Kavanaugh asked a series of questions about Knowlton’s encounter with the Hispanic-looking man including one of a graphic sexual nature.

In contrast with Ruddy’s toned-down version, here is how Richard Poe described the grand jury interrogation, the details of which he got from the chapter entitled “Street Fascism” in Ambrose Evans-Pritchard’s 1997 book, The Secret Life of Bill Clinton:

Perhaps the most telling indication of Starr's attitude toward Knowlton is the humiliating cross-examination to which this brave man was subjected before the grand jury. Knowlton says that he was "treated like a suspect." Prosecutor Brett Kavanaugh appeared to be trying to imply that Knowlton was a homosexual who was cruising Fort Marcy Park for sex. Regarding the suspicious Hispanic-looking man he had seen guarding the park entrance, Kavanaugh asked, Did he "pass you a note?" Did he "touch your genitals?"

Knowlton flew into a rage at Kavanaugh's insinuations. Evans-Pritchard writes that several African American jurors burst into laughter at the spectacle, rocking "back and forth as if they were at a Baptist revival meeting. Kavanaugh was unable to reassert his authority. The grand jury was laughing at him. The proceedings were out of control."