Brett Michael Kavanaugh

The mash up between Christine Blasey Ford and Brett Kavanaugh has produced very strong opinions for and against the claims of each. Our views on the veracity of each are based on our emotional assessments of the testimony of each. Unless the FBI interviews contain new facts, there is no evidence to confirm Prof. Ford’s claim that Kavanaugh sexually assaulted her nor evidence to confirm his claim that he didn’t. This is the horrible fact for acts, or alleged acts, with no witnesses (Ford claims Mark Judge witnessed the events she describes but he denies it).

This is the sad situation of “She said—he said” for which there seems no easy remedy. Actual rape generally produces evidence (semen) if promptly reported. But we have come to understand why many women do not promptly report their assaults. Memories and evidence fade with time. The sworn statements of Prof. Ford and Judge Kavanaugh have holes and inconsistencies and you will believe the one you choose, for whatever reasons, to believe. Prof. Ford can’t remember where or when her assault occurred or how as a 15 year old girl she got there or returned home. Her fear of flying didn’t prevent her from doing a lot of it, etc. Judge Kavanaugh’s choirboy depiction of his youth doesn’t square with the police report of a bar brawl he started in college and testimony of roommates and classmates of his hot temper when drunk, etc.

“Democrats, the left, and various other anti-Kavanaugh persons can thank attorney Michael Avenatti for this outcome, at least in part.

“The spotlight-stealing lawyer, who also represented Stormy Daniels, is responsible for drawing the media’s attention to Julie Swetnick, an alleged victim of Kavanaugh who told an inconsistent and unpersuasive story. Swetnick’s wild accusation provided cover for fence-sitting senators to overlook the more plausible allegation leveled by psychology professor Christine Blasey Ford, and to declare that Kavanaugh was being subjected to false smears.” “Brett Kavanaugh-Michael Avenatti Collins”

The sad consequences for the reputations of Ford and Kavanaugh, tragic as they are, are compounded by the despicable behavior of both the Republican and Democrat parties. The refusal of the Republican controlled Senate to confirm President Obama’s Supreme Court nominee, Merrick Garland, was a shocking breach of protocol. “Even before Obama had named Garland, and in fact only hours after Scalia’s death was announced, Senate Majority Leader Mitch McConnell declared any appointment by the sitting president to be null and void. He said the next Supreme Court justice should be chosen by the next president — to be elected [eight months] later that year.” “What-happened-with-merrick-garland-in-2016”-NPR

The Democrats have behaved as badly: “Sen. Bob Casey and Senate Minority Leader Chuck Schumer also announced that they opposed Trump’s pick without knowing whom the president had selected.” “Democrats-race-to-oppose-trumps-scotus-nominee-even-before-name-announced” Senator Feinstein’s withholding of Prof. Ford’s letter accusing Kavanaugh until the last minute was either stupid or malicious.

Sadly we didn’t have much of the debate we should have had about Kavanaugh’s judicial qualifications and judicial philosophy. He is clearly highly qualified as was Judge Garland who as Chief Judge of the United States Court of Appeals for the District of Columbia Circuit headed the same court on which Kavanaugh has sat for the last 12 years. His job, he says, is to fairly interpret and enforce the law, not make it. Is he an originalist or texturalist and what do those mean?

Since 9/11 and The Patriot Act we have lived in a semi surveillance state that violates our constitutional rights to privacy and due process. As an official in the W Bush White House, Kavanaugh helped write the Patriot Act and later as a Federal judge he ruled to uphold parts of it that many of us consider unconstitutional:

“In a ruling in the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh ruled that ‘the Government’s metadata collection program is entirely consistent with the Fourth Amendment.’ He also later stated ‘that critical national security need outweighs the impact on privacy occasioned by this program.’ Again, a rather odd conclusion for a staunch ‘constitutionalist’ to support.” https://fee.org/articles/the-constitutional-reasons-to-oppose-kavanaugh-for-the-supreme-court/?utm_campaign=FEE%20Weekly&utm_source=hs_email&utm_medium=email&utm_content=66477479&_hsenc=p2ANqtz–ZykcA0d1RgLgdKULIW6mqsBca_Mo6JDsC32-QU_CuMj4Tjcd7zNZA3lLuA0j1VucrH83ejT1Zrte2fKpGKnJS7qGN6w&_hsmi=66477479

But in most areas of protecting constitutionally protected rights or constitutionally mandated restraints on government, Judge Kavanaugh has been on the side of strict constitutionalism. While constitutional scholars are divided over just what a proper adherence to the constitution in the twenty first century should means, there is almost universal agreement that former justice Antonin Scalia helped sharpen the debate around that question.

The left wing historian and activist Howard Zinn puts the issue of judicial philosophy of SC judges in perspective in the following article. https://progressive.org/op-eds/howard-zinn-despair-supreme-court/

I assumed that he was writing about Judge Kavanaugh. After reading it I was surprise to realize that it had been written thirteen years ago. Mr. Zinn died in 2010.

Britt Kavanaugh’s scrutiny by the Senate has been ugly and painful. The Senate’s abandonment of traditional procedures, with their checks and balances, first by the Democrats and now by the Republicans is shortsighted and regrettable. The lack of deference to the President when consenting to his or her choices for her government is recent and regrettable. But most regrettable of all is the divisive lack of commitment to service to the nation as a whole rather than narrow partisan interests by our congressional representatives and our tweeting President.

Protecting our Civil Liberties

Richard Nixon reminded us of the great dangers to our cherished liberties inflicted by the powers available to our government. Remember his “enemies list.” Or if you are too young to remember it real-time, hopefully you have read about it (Watergate!! Remember?). Nixon was forced to resign because of it.  It was a victory of our free press.

Or if you want something more recent, what about “Filegate.” According to Wikipedia: “The White House FBI files controversy of the Clinton Administration, often referred to as Filegate, arose in June 1996 around improper access in 1993 and 1994 to Federal Bureau of Investigation security-clearance documents. Craig Livingstone, director of the White House‘s Office of Personnel Security, improperly requested, and received from the FBI, background reports concerning several hundred individuals without asking permission. The revelations provoked a strong political and press reaction because many of the files covered White House employees from previous Republican administrations, including top presidential advisors. Under criticism, Livingstone resigned from his position. Allegations were made that senior White House figures, including First Lady Hillary Rodham Clinton, may have requested and read the files for political purposes, and that the First Lady had authorized the hiring of the underqualified Livingstone.”

I feel bad using the above example after Bill Clinton’s wonderful article in today’s Washington Post calling for the repeal of DOMA, which he had signed into law in an earlier time.

Any power that government has can potentially be abused, so our Constitution strictly limited them and required checks and balances on their use. When I was in college – U of C Berkeley in the mid 1960s—George Orwell’s 1984 was still several decades in the distant future. Big Brother (an all-powerful government that looked after our safety and its own), with its ability to spy on our every activity to ensure that we behaved in the country’s (i.e. the government’s) interest, was a fictional nightmare that we couldn’t imagine happening in America.

Then came 9/11 and the Patriot Act. The American Civil Liberties Union flagged three powers in the Act, even after it was renewed in May 2011, that go too far:

“The three expiring provisions of the Patriot Act give the government sweeping authority to spy on individuals inside the United States, and in some cases, without any suspicion of wrongdoing. All three should be allowed to expire if they are not amended to include privacy protections to protect personal information from government overreach.

                  Section 215 of the Patriot Act authorizes the government to obtain “any tangible thing” relevant to a terrorism investigation, even if there is no showing that the “thing” pertains to suspected terrorists or terrorist activities. This provision is contrary to traditional notions of search and seizure, which require the government to show reasonable suspicion or probable cause before undertaking an investigation that infringes upon a person’s privacy. Congress must ensure that things collected with this power have a meaningful nexus to suspected terrorist activity or it should be allowed to expire.

                  Section 206 of the Patriot Act, also known as “roving John Doe wiretap” provision, permits the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped. This provision is contrary to traditional notions of search and seizure, which require government to state with particularity what it seeks to search or seize. Section 206 should be amended to mirror similar and longstanding criminal laws that permit roving wiretaps, but require the naming of a specific target. Otherwise, it should expire.

                        Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, or the so-called “Lone Wolf” provision, permits secret intelligence surveillance of non-US persons who are not affiliated with a foreign organization. Such an authorization, granted only in secret courts is subject to abuse and threatens our longtime understandings of the limits of the government’s investigatory powers within the borders of the United States. This provision has never been used and should be allowed to expire outright.”

Now our government has hinted that it might have the power to undertake extra judicial killing of Americans on American soil via drone attacks. I have been stunned in recent years at the relatively quiet acquiescence of many Americans to these dangerous extensions of unchecked or under-checked government powers. They happily send their neighbors’ sons and daughters to far off lands to fight “our” enemies and to sometimes die there, while not having the courage to tell our government here at home to back off.

Today’s “The New Yorker” headlined “The Borowitz Report” with: “Poll: Majority of Americans Opposed to being Killed by Drone.” This is meant to be satirical, of course. But until Rand Paul filibustered in the U.S. Senate against the confirmation of John Brennan unless the government would state clearly that it would not target Americans in the U.S. without due process, you might have thought that Americans didn’t care much. Earlier this week Attorney General Eric Holder “wouldn’t rule out the possibility of a drone strike against Americans on U.S. soil. But he said the administration wasn’t planning on such a strike and would use the option only under extreme circumstances.” (CNN: http://www.cnn.com/2013/03/07/us/drones-five-things/index.html)

Following Senator Paul’s filibuster the Attorney General sent a new letter to the Senator stating:

“It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ ” Holder wrote. “The answer to that question is no.” (CNN)  This is a small but important victory for restraining Leviathan and protecting our liberties and it has taken a long time. I wrote on this same subject almost exactly one year ago: https://wcoats.wordpress.com/2012/03/22/extra-judicial-killing/

Thank you Rand Paul.

I have spoken out in defense of our constitutional liberties on a number of occasions as well, including: https://wcoats.wordpress.com/2012/09/15/further-thoughts-on-free-speech/,   https://wcoats.wordpress.com/2012/09/29/freedom-of-speech-final-thoughts-for-a-while-at-least/

“The price of liberty is eternal vigilance”