Kavanaugh Hearing

If the Supreme Court respected precedent, there would still be separate but equal schools (Plessy v. Ferguson) and no state supplied counsel in criminal cases (Betts v. Brady).

 

I wouldn't judge the guy on what happened in that confirmation hearing. It was basically a political show on the Democrats side so they could convince their base that they are fighting against this guy. Then the Republicans were just trying to prop him up to counter the Democratic argument. Half the time the Democrats wouldn't let him fully answer the question and were trying to direct him in a way to get the response they wanted. When he wouldn't bite they put it out there as being non-responsive. There are legitimate questions about him and how he has ruled, but also a ton of misinformation or mischaracterization. I have no doubt he is going to be one of the more conservative justices, but how he rules on any specific issue is really up in the air. I think he could have a significant impact in the regulatory area, but doubt he is going to move the court on social issues like Roe, gay marriage or even religious rights. As far as Trump goes even if Trump was thinking the guy could be a swing vote, at least 4 other members of the court would have to go along with him. Thomas leaned the other way in Clinton v. Jones along with two liberal members still on the court. Roberts probably would navigating the middle of that issue as well. It's not even certain Kavanaugh would try to defend Trump as he also has written that U.S. v. Nixon was one of the great decisions from the court. He is most likely going to get confirmed regardless, so we will just have to wait and see what happens.

 

It doesn't have to respect stare decisis in every case, but the existence of the past case should create a higher hurdle for the court to reexamine the issue. If you didn't have stare decisis, each court might be recirculating all the controversial cases so that those justices could put their own jurisprudential spin on them. Having that kind of volatility in the law is just as bad as having rigidity.

 

Okay, but the greater point here isn't that precedent should be bulletproof. Instead, if Kavanaugh does not agree with specific precedent, he should make that clear. People should know what they're getting.

 

By the way, your article has a pretty prescient observation from Kavanaugh:

As I have written before, ‘no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated — whether in favor of the President or against him, depending on the individual leading the investigation and its results.’

Sums up the current situation nicely.

 

To me he is just pointing out the obvious, that removing the president is a politically charged event and the legitimacy of the process depends on structural considerations. He is simply echoing what Hamilton said over 200 years ago.

 

Roe v. Wade didn't even have an appeals courts decision associated with it. So much deep thought on that rushed case.

 

On topic, I originally posited that I don't see a reason to oppose Kavanaugh other than playing politics.

After reading more on his background, I have significant concerns that he is a person who is completely improper for this job due to his lack of respect for the constitution and willingness to dishonestly push political agendas over protecting our constitution, our rights, and our people.

1) His position on Presidential exemption from investigation needs to be strictly clarified. He should be made to state explicitly how by what means the President is appropriately investigated and removed for crimes in office. It is not at all clear that he believes there is any valid mechanism for investigating, charging or removing the President.

2) His recorded position on a case linked above shows complete disregard for our 4th Amendment protections. IMO, that should disqualify him immediately on that issue alone.

3) He demonstrates a TOTAL disregard for humanity as well as the law. Again in the same linked article describes a case where he (and other judges) ruled that tortured Iraqis at Abu Ghraib could not sue the defense contractors who tortured them, by in large part completed downplaying what happened there and saying there was only instance of an act that could be described as torture. You need to read the linked account from the dissenting judge - none other than Merrick Garland, who outlines what Kavanaugh and others said didn't qualify as torture. This is sick, sick, deeply disturbing behavior that Kavanaugh intentionally protected.

 

The only one seemingly dishonestly pushing a political agenda is whoever wrote that terrible article you quoted.

He did clarify his thoughts over time in articles he wrote. His opinion was that congress should consider creating a law that gives the president immunity from prosecution while in office. He noted there are some constitutional questions, but they are probably dubious and would likely not create a majority opinion. That is you can make the argument that the constitution implies that judicial proceedings are precluded, as I did earlier in this thread, but there is no clear path for the court to say that the constitution precludes bringing charges against a sitting president. He is also at this point not going to comment on how he might rule or hypotheticals based on precedent set by the last several appointments. I think Kagan was the first to invoke this and maybe in a much more serious situation where she had no judicial record by which to look back on. I don't remember the unanimous outrage back then on Too Hot.

The 4th amendment issue was already ruled on in the 80s and said that the government could mandate drug testing if it's narrowly tailored and had a special interest. The question in this case was whether a "special interest" applied to the JCCC workers. I disagree with him, but there is an argument to be had in terms of worker safety and drug use. There are all kinds of safety issues in that kind of work. What he points to though is the idea of drug testing teachers as these workers had supervisory responsibility for students. The issue of drug testing teachers has never been resolved, but I think it's reasonable to ask the question as to whether someone that is frequently high on the job should have custody of your children.

The issue of liability for torts committed during wartime is a complex one and often difficult to unwind. But I will stick to the stupidity of the article no this one. As to the problem with the language, the opinion addresses it:

"While the terms "torture" and "war crimes" are mentioned throughout plaintiffs' appellate briefs and were used sporadically at oral argument, the factual allegations in the plaintiffs' briefs are in virtually all instances limited to claims of "abuse" or "harm." To be sure, as the dissent emphasizes, certain allegations in the complaints are a good deal more dramatic. But after discovery and the summary judgment proceeding, for whatever reason, plaintiffs did not refer to those allegations in their briefs on appeal. Indeed, no accusation of "torture" or specific "war crimes" is made against Titan interpreters in the briefs before us."

So torture generally refers to inflicting physical or psychological pain on someone in custody with the aim of gaining information from that person. The court found the incidents to be simply inflicting harm because they disliked the detainees or for "fun" and characterized it as "harm". They had no information gathering motive as that was left to the interrogators. I don't think that is an unreasonable assessment. Also the article is attributing the language in the opinion to Kavanaugh, but the opinion was actually written by the other judge, Silberman. Kavanaugh joined the opinion, but likely would have written it up in a different manner. In other words those aren't his thoughts they are complaining about though he agreed upon the points of law.

 

There likely is bias in the writer's perspective, but he quoted from from cited cases... will discuss that further below. Will also mention that while I vehemently disagree with your takes on this particular issue, I definitely respect you as a poster. Just not on the same page here.

I could be wrong but to me it is completely unclear whether he supports investigations into potential crimes of the POTUS and the impeachment process, or whether he against any of that. If he is against either investigation of the POTUS or the impeachment process, and also any other form of prosecution, it is a HUGE problem. All I want is that he definitely state that he supports the special counsel (or similar investigation) and the impeachment process, which is the constitutional process for dealing with criminal activity of the POTUS. If he doesn't support investigation and impeachment, it should be a disqualifier. Another instance of his disregard for the constitution.

The POTUS cannot be completely above the law with zero recourse for the nation to protect itself from his/her criminal actions.

I am incredulous that anyone could consider the govt to have a narrowly tailored "special interest" in drug testing forest service employees. He overruled clearly correct decisions from lower courts, violating these people's 4th amendment rights. He claims to be a "textualist". C'mon. That is a Big Brother, big government ruling that is in no way in concert with the Constitution. If they could, the Founding Fathers would dig themselves out of their graves and kick his ass for claiming to be a conservative "textualist" jurist.

That is a tortured rationalization for this ruling. Pun intended and completely appropriate.

The idea that these people don't have grounds because these contractors didn't extract information while brutalizing and murdering these people is almost as sick as the actions themselves.

For reference:

tor·ture
ˈtôrCHər/
noun

1. the action or practice of inflicting severe pain on someone as a punishment or to force them to do or say something, or for the pleasure of the person inflicting the pain.

 

Of course... but to my points leading up to that, I want to know that Kavanaugh fully supports investigation of the POTUS and impeachment.

It is very clear he is in favor of exempting the POTUS from any criminal or civil legal proceedings while in office. If his views is that exemption includes exemption from investigation, then impeachment is a moot issue. You can't impeach for something that can't be investigated.

 

That's a convenient out that's not true in practice. Kavanaugh could have concurred if he felt the opinion misstated his opinion. However, as a judge who is joining in the opinion, he has a lot of say in how he wants it written. If Silberman refused, as I said, he could have concurred.

 

Just because he quotes a case doesn't mean he actually captures the thrust of the argument. I read the cases in question and his complaints seem peripheral to the question at hand at least in the last one. In the second one I disagree with Kavanaugh based on the case law history, but also disagree with your assertion that he hates the 4th amendment. He has ruled in favor of the fourth amendment at times as well.

You could read what he has written on the subject like everyone else who has weighed in in an informed manner. I think the articles in question are linked in this thread somewhere. I did and like I said before, he favored that congress take action to give immunity. That was also in the 1990s, so we don't know how he would rule now. He also said that he agreed with the Nixon case that gave the judiciary subpoena power over the executive, so he apparently isn't going to simply defend the president on every issue. He made one comment that there are potential constitutional issues with charging the president, but never really laid that out nor was it the focus of his argument. If he did face those facts on the bench my guess is that he would have difficulty coming up with a coherent argument in favor of a constitutional ban that he could sign off on, let along convince at least 4 others to do so.

Even if he was willing to comment on his current feelings, which hasn't happened since before Kagan, there is no guarantee that he would actually rule that way when the facts and circumstances and arguments of his peers came before him, or to even be a bit pessimistic, if he answered truthfully rather than say what they want to hear to get the job.

I don't know what's so incredulous about it. The government has narrowly tailored interests in a lot of rights. Should a school bus driver be exempt from drug testing, putting kids at risk, because he is a government employee? I don't agree with him in this case as I think he is pushing the limits a bit, but one can rationally argue that the government has a safety interest in keeping such employees drug free, and that's exactly what the government was arguing.

The torture bit has nothing to do with the ruling as it was peripheral commentary about the language used by parties to the case. That was the court's opinion as I cited and not Kavanaugh's words. The issue was whether the contractors had immunity from wartime torts, which is something that has established precedent. The court simply interpreted the facts in the case and tried to line them up with the precedent. You might disagree, but the proper argument isn't that "Kavanaugh hates humanity", it's that the two of three judges that decided it misapplied the tests required by prior decisions for some specific reason.

The problem I had with the the article and some of your comments is that they seemed entirely hyperbolic and ignored the core legal arguments. Simply grabbing on to one facet of an opinion or argument and twisting it in a way that supports what you want to believe is intellectually dishonest. I am not trying to put you down or anything as neither you nor I have the legal background to properly evaluate these things, but still it's pretty easy to read the cases and be able to shoot holes in what the writer of the article was trying to argue.

 

To be clear, I am not just taking a stance that "he hates the 4th amendment", but that he lacks respect for the Constitution that his "textualist" approach would be presumably upholding, and that he holds partisan political viewpoints over that of the Constitution. The 4th Amendment just being one aspect.

I have, and his mixed statements are not at all indicative of someone who clearly favors a method for the POTUS to be held accountable.

The positive aspect as you note is that it is unlikely he could sway a majority of judges to such a POV.

But the underlying rationalization (if true) of protecting the POTUS from accountability is the troubling issue. That can't be an acceptable stance for someone sitting on the USSC.

They're forest service workers. What possible narrowly tailored special interest could the govt have in what they do in their free time? Incredulous is the appropriate term. There is nothing about their job that rationalizes voiding their rights.

Good explanation.

Dangerous and ridiculous precedent, though. They should clearly be held accountable. Seems like a good case to reverse a bad precedent.

The law should serve justice. Judges should serve justice.

 

The article effectively made the point it sought to make. It made clear whom Kavanaugh is.

 

He doesn't lack respect for the constitution, he is following court precedent that says certain exceptions can be made subject to a strict scrutiny test. The exception was narrowly tailored as it only applied to employees of the Job Conservation Corp who supervised at risk youths in a rural residential school setting. The argument the government made was both in terms of maintaining a drug free environment and also for the students' safety. The lower court had sided with the government and the appellate court overturned the decision. It's a reasonable argument and a judgement call, nothing so extreme as a diversion from jurisprudence for partisan reasons. Here is part of the rationale from the lower court that Kavanaugh cited:

"
Based upon the Court's findings that all JCCCC employees must help maintain a drug-free environment for JCCCC students[;] their role as counselors, educators and adult supervisors to youth prone to drug use[;] and the employees' responsibilities in maintaining a safe environment for residential students located in remote parts of the country, the Court concludes that the government has a compelling interest in testing these employees to ensure that they do not compromise the Jobs Corps' overall educational program and do not put students at risk․

The defendants' interests in testing JCCCC employees are not merely symbolic, but are directed toward maintaining the effectiveness of the JCCCC program and ensuring the safety of students located in remote rural sites across the country. This rationale overrides the employees' expectation of privacy, which is already diminished considering the nature of their employment and the regulations already imposed upon them."

The POTUS isn't protected from accountability textually in the constitution. The only question is the timing of judicial action. So can a court remove a sitting president or does impeachment have to happen first? He never said that the president is immune from being charged.

It's been debated since Mai Lai and maybe before that. From a military standpoint the government can claim sovereign immunity and that makes some sense. If you are fighting against a belligerent country or force, they shouldn't have liability issues driving military decisions. There are international "rules of war" that are abided by and occasionally there are instances where troops go rogue. The question though is if it's really negligence or a product of war? If a soldier kills a family out of grief because his best friend had been killed by the enemy the day before, is that really something the government can control? You can't train for that kind of thing. In terms of contractors, I think the rules follow what's applicable to the military as they are agents of the government. Personally I would favor being able to sue them, but with a relatively high standard of proving independent negligence on the part of the company.

 

And FWIW, I don't think those two cases were the most galling from that article. Kavanaugh is a corporatist who will do mental gymnastics to justify favoring big business over the little guy, even if it means suspending common sense or abandoning his supposed judicial ideology. These were the two cases that especially bothered me:

The second case is especially baffling for a guy who claims himself to be a textualist.

 

Whoever doesn't believe in the left's reliance on judicial activism should read between the lines here:

Democrats send 1,278 questions to Kavanaugh, more than all other Supreme Court nominees combined

 

On the impeachment question, there would be a mechanism to investigate - Congress can.

Whether a criminal investigatory agency can conduct a criminal investigation into a sitting president but elect to simply sit on any charges that they find may be merited until he leaves office is an interesting question, but whatever answer you come down with wouldn’t leave presidents immune from ever being subject to an investigation that could lead to impeachment.

The whole idea of a criminal investigation making a “referral” to Congress as the basis for impeachment is, at least in the case of the President, a relatively new concept. Impeachment is, by its nature, a very political - and very Congress-centric - process. I don’t know that it would be Constitutionally unreasonable to think that it is Congress itself who should be conducting any investigation that may ultimately lead to impeachment.