Author: hamilton1788

If you believe what Amy Barrett said during her confirmation hearings, the legal process is very simple and mechanical. All you need is a judge who has the self-discipline to follow the law instead of enforcing her own policy preferences. She reads the statute and the relevant legislative history (the latter only when necessary) and reaches the right conclusion. Easy!

The reality, of course, is completely different. Statutes and case law are frequently filled with ambiguity. Legislative history goes all over the place. For every canon of construction, there is an equal and opposite canon. There is plenty of room for the judge to impose her own values on the litigants without ever having to disclose what they are. It is a feature of the system that feels unfair to everyone, but it cannot be eliminated. There is no justice machine–just an imperfect system run by fallible people.

That, of course, is why it is necessary in the confirmation process to ask questions about attitudes towards values and policy that sound irrelevant, and why the nominees generally blow them off.

A quiet, sober, restrained discussion on ABC. A raucous, combative town hall featuring an angry, out of control liar on NBC. It could only happen in 2020.

I can’t imagine that any sane person who toggled between the two would vote for Trump.

The left thinks that rumors and fake news generated by the right and spread at the speed of light beyond the control of gatekeepers on Facebook are a danger to our liberal democracy. The right thinks a private company should not have the ability to censor political speech. In this case, both sides are correct.

The issue isn’t whether Facebook puts its profits ahead of the public interest, even though it does; the root of the problem is that Facebook is effectively an immensely influential international public utility being operated as a private company for the benefit of its wealthy investors. That cannot last. Facebook should either be broken up or regulated like other public utilities in order to reduce its power over our political system.

All GOP nominees profess to believe in “judicial restraint,” and promise not to substitute their values for the intent of the legislature. Originalism, however, is a “Protestant” approach to constitutional law, ironically practiced most conspicuously by Catholics, which shows little deference to judicial precedent, past practices, and legislative intent. The two judicial doctrines most loved by the GOP are, therefore, fundamentally in conflict with each other. Thanks to Senator Durbin for pointing this out in a relatively subtle way.

While commenting on pending cases is a violation of the judicial canons, and speculating about the outcome of incomplete factual hypotheticals can mislead the audience, there is absolutely no good reason other than self-preservation why judicial nominees cannot talk about the reasoning in past cases. To refuse to do so deprives the Senate and the American people of the ability to make a fully informed decision on confirmation. The “Ginsburg Rule,” in short, needs to go. Senators on both sides of the aisle should refuse to confirm nominees who use it to protect themselves in the future.

Barrett admitted that Griswold was not likely to be relitigated in the future. It is not a hypothetical fact situation. Barrett’s refusal to talk about it was thus a completely unwarranted extension of the “Ginsburg Rule” even if you think the “Rule” has merit, which it does not.

Both parties got what they wanted out of the hearing. The burden is on Barrett to prove that she isn’t a handmaid for an evil and corrupt president. If she casts a decisive vote to strike down the ACA or keep Trump in office against the will of the American people after this performance, there will be hell to pay in this country in 2021.

While I have a bit more to say about the process in general, I will not review Day 4, which will be completely pointless.

Lindsey Graham started the Barrett hearings both yesterday and today by complaining that South Carolina was being shortchanged by Obamacare funding formulas. What he somehow neglected to mention is that the Republicans in South Carolina, undoubtedly with his support, have refused federal funding to expand Medicaid. That is the reason his state, and some other red states, are net donors in Obamacare funding. All they have to do is take the federal money to make the problem go away.

So it isn’t just his flip-flop on confirming Supreme Court justices in an election year. His hypocrisy knows neither limits nor shame.

The Constitution says nothing about a First Lady. As far as I know, the statute book doesn’t, either. It is a status, not a government job. It does not come with a salary or legal responsibilities, and should not carry any special privileges other than physical protection.

The DOJ apparently thinks otherwise. It has filed suit to enforce an NDA involving a former friend of the First Lady. This is a purely private contractual matter that has nothing to do with the public interest, as no classified information is involved. To the extent that anyone should care about routine communications between FLOTUS and her friends, the law should favor public disclosures, not secrecy.

This is another obvious attempt by Barr to suck up to his boss. It’s a minor item, but it reflects Trump and Barr’s belief that l’etat, c’est le president, as it erodes the distinction between public and private conduct. It’s a precedent that needs to disappear as soon as Trump leaves office.

Consider the plight of an unwed pregnant teenage girl who is denied the right to an abortion. She will be stigmatized for the rest of her life; the father suffers no such indignity. She may well be rejected by her family, abandoned, or even subjected to physical abuse. She has no guarantee of receiving the necessary medical care during her pregnancy. Giving birth comes with considerable medical risk. When the process is over, she will either have to deal with the pain of surrendering the child or accept severe constraints on her ability to develop her talents and make a living. It is a grim picture.

To which American reactionaries say . . . GOOD! Their ultimate objective is to eliminate, to the maximum extent possible, the freedom of women to engage in sex outside of marriage. To them, the struggles associated with pregnancy are the penalty for sin. Eliminating them would be a serious mistake.

While genuinely pro-life people actually do exist, they represent a small minority of the Republican Party. Barrett is clearly one of them, but once on the Supreme Court, she will effectively be a tool of the reactionaries, because they are the ones with the power in her party.

It is clearly inappropriate for senators to ask questions about the potential outcome of a pending case. It is not inappropriate to ask questions about the reasoning behind previous decisions, particularly when the nominee makes every effort to associate herself with the author of those decisions. The failure of this nominee, and many previous nominees, to provide any meaningful information about her judicial philosophy is the principal reason so many confirmation hearings have turned into exercises in the politics of personal destruction; opponents of the nomination on ideological grounds have nowhere else to go. In the long run, it discredits the process and shortchanges the public, particularly in an election year.

It appears that the only kinds of questions Barrett will answer either relate to originalism in general or opinions she actually wrote. The Democratic members of the committee need to work within that framework. There is still some useful information to be unearthed there with the right questions. Just no more tiresome speeches about the value of ACA . . . please!

As I understand it, mailed ballots will be counted last in Wisconsin, Michigan, and Pennsylvania. That means we won’t know for sure who won the election when we go to bed on November 3, and a Trump tantrum about voter fraud on November 4 is just short of inevitable.

But the results from Florida may well be known by the end of election night. If Biden wins Florida, it will be clear to everyone that the rout is on. The steam will be taken out of Trump’s more violent supporters. There will be fewer Brooks Brothers riots and less violence, and the judicial system will take his complaints about fraud less seriously.

In short, Florida’s system embarrassed the country in 2000. Let’s redeem ourselves and save America as we know it this time.

Barring an improbable shift to populist economic policies, the GOP is doomed to become a permanent minority party in the next decade. As a result, we are starting to see intellectual justifications for minority rule based on the alleged intentions of the Founding Fathers. Do they have any basis in reality?

No, for the following reasons:

1. While it is certainly true that the FFs were not pure democrats, their ideas were extremely advanced for their age, as evidenced in the Declaration and the preamble to the Constitution. Their objective was to provide representation for both the wealthy and the masses, as in the Roman Republic. As a result, there are no restrictions on the franchise in the Constitution, as there might well have been.
2. The other clear template for the new American political system was the British system, in which the House of Commons, not the House of Lords, was the predominant actor even at the time the Constitution was written.
3. If you believe in oligarchy, it is counterintuitive, to say the least, to argue that white Christian voters in relatively poor red states should have more power than voters in more prosperous blue states.
4. The most important point here is that the FFs view of democracy has been superseded by dramatic constitutional changes over the last two centuries. The FFs accepted slavery, a subordinate position for women, and a Senate that was not elected by the people; we don’t. To rely on their views on democratic principles in this day and age in light of our history is consequently ridiculous.

As you would expect, there was plenty of bloviating by senators on both sides of the aisle today. The Democrats did their best to limit their discussion to ACA and avoid saying anything interesting, while the Republicans made the patently false claim that the Democrats were anti-Catholic bigots.

I’m not convinced that Barrett’s vote to kill ACA is set in stone; her comment about Roberts making a deal to save the legislation and the Court’s reputation is consistent with the facts and my own observations. The current case against ACA is so weak that even many conservative legal analysts have called it frivolous. Does Barrett really want to start her career on the Supreme Court by doing untold damage to the country for no obviously good reason? I would think not, but we’ll see.

Confining questions to ACA is an approach that can be described as both safe and cynical. Safe, because it emphasizes a theme that the Democrats want the voters to consider heavily in their decision making process; cynical, because they know Barrett can’t respond to any questions that involving a pending case. Personally, I hope the questions are more adventurous than that; I would ask about originalism, Heller, and Griswold, and even about any commitments made to the People of Praise that might conflict with her constitutional obligations. Will the Democrats oblige me and make the hearings at least a little bit entertaining? I have my doubts; safety first seems to be the order of the day.

Given that the Democratic nominee is a practicing Catholic, there are at least five other Catholics on the Supreme Court, and the Democrats on the Judiciary Committee said nothing about Catholicism in their opening statements, the attempt by GOP committee members to paint Democrats as anti-Catholic bigots seems like a stretch to me. One imagines the few people who could tolerate watching the first day of the hearings felt the same way.

Thom Tillis and the GOP are ripping Cal Cunningham up one side and down the other over his sexting scandal. You might think this is a bit rich for a candidate and a party who have pledged their unconditional support to a man like Donald Trump, but there you have it.

The question for the day is, what does the GOP do about the Trump ethical standard once the man on golf cart is gone? Every time they attack a Democrat over some sort of public or private morality issue, they are going to have Trump thrown back in their face. How will they respond?

My guess is that they will argue that Trump was a special case because his flaws were well known to the electorate, and disregarded. That gave Trump the right to do anything he wanted in office. No one subsequent to him will have the same privilege.

What kinds of litigation will arise from the election, and how will these cases be resolved? Here are my predictions:

1. FEDERAL COURT LITIGATION BASED ON THE PANDEMIC THAT IS INTENDED TO LIBERALIZE STATE VOTING REQUIREMENTS: We’ve seen this movie already, and we know how it ends. GOP state governments prevail in these cases.
2. STATE COURT LITIGATION BASED ON THE PANDEMIC THAT IS DESIGNED TO LIBERALIZE VOTING REQUIREMENTS: There are too many different courts and statutes in play here to make any predictions. What I can say with confidence is that the Trump campaign will try to have any cases it loses reconsidered in federal court, because it sees the Supreme Court as its ultimate backstop.
3. CLAIMS BASED ON VOTER INTIMIDATION: This is going to happen; the only question is how widespread and violent the intimidation will be. From a legal perspective, the problem will be in crafting an acceptable remedy. In all likelihood, the judiciary will say that the laws against intimidation should be enforced through the criminal process, and that there is no civil remedy to extend or redo the vote. Intimidation will work, in its way.
4. FEDERAL CLAIMS INTENDED TO STOP THE COUNTING OF VOTES: This is where the real action will be. Trump’s attorneys will craft frivolous due process/equal protection arguments based in some way on Bush v. Gore and hope that the Supreme Court will save their client’s bacon. Will it work? With Alito and Thomas, yes. With the liberals, obviously not. With Roberts and the Trump appointees, probably not, but there will be plenty of drama, and we won’t know what will happen until it is over.

Ross Douthat told us repeatedly in 2016 that Donald Trump wouldn’t be the Republican nominee, so it would be reasonable to take his latest predictions with a grain of salt. Nevertheless, it is noteworthy that he thinks that Trump doesn’t have what it takes to launch a coup if he loses. Is Douthat correct, or should we be worried?

Let’s deconstruct his argument. It really has two parts:

1. Trump has no record of being able to mobilize large numbers of people to perform illegal acts. To use my words, he’s a man on golf cart, not a man on horseback; and
2. The public–even extreme conservatives–won’t respond to him if he tries it.

My reactions are as follows:

1. Yes, Trump is just a man on golf cart under normal circumstances. He wants and needs adulation more than power. Faced with an existential and immediate threat to his identity as a winner, however, he is capable of doing just about anything. His complaints about the DOJ’s failure to prosecute Clinton, Biden, and Obama are just the beginning. I don’t have any confidence that our usually easygoing strongman will just fade away under these altered conditions. He’s going to be laser focused on staying in power to a degree we haven’t seen before.
2. My best guess is that demonstrations on his behalf will be relatively sporadic. I could be wrong about that, however. Trump’s extreme right wing supporters are being told over and over again by Fox News and talk radio that life as they know it will end if Biden wins in November. Some of them are in power at the state and local levels, and many of them are armed. Fears about what they will do are perfectly realistic.

My prediction is that Trump will demand an end to the counting of votes at some point on November 4 if a red mirage is still in place at the time. There will be lawsuits filed on his behalf and Brooks Brothers riots to that end in countless jurisdictions. Trump’s ultimate objective will be to get the Supreme Court to keep him in office. At some point, the Court will, in fact, be forced to confront the issues presented by the election, even if those issues are legally frivolous, which is quite likely.

What kinds of legal questions will arise, and what will happen with them? I will address those topics in my next post.