A slight majority of Americans surveyed by the Washington Post and ABC News back continued investigation by Congress of Brett Kavanaugh even after his Supreme Court confirmation.
More Americans disapprove of Brett Kavanaugh’s confirmation to the Supreme Court than approve, and a narrow majority says congressional investigation of the new justice should continue, not end with his elevation to the court, says a new Washington Post-ABC News poll. The Senate’s 50-to-48 vote to approve the 53-year-old Kavanaugh’s appointment was the closest on a Supreme Court justice since the 1880s. The poll shows the public’s reaction was almost as divided. The survey shows that 43 percent of Americans believe the court’s rulings will be more politically motivated with Kavanaugh on the court.
Asked how the Kavanaugh debate would affect their midterm vote, slightly more say it makes them more inclined to support Democrats for Congress than Republicans. Women say the episode draws them toward Democrats over Republicans by a 16-point margin, while men are more evenly split. The Post-ABC poll finds 53 percent of Americans support further investigation of Kavanaugh by Congress, while 43 percent are opposed. There are significant gender differences, with men narrowly approving of Kavanaugh’s confirmation (48 percent approve, 43 percent disapprove), while women disapprove of the confirmation by a 23-point margin (58 percent to 35 percent).
Brett Kavanaugh began his Supreme Court tenure by announcing the hiring of four female law clerks. But that doesn’t address the elitism that undermines how we pick the people who staff the nation’s highest court. TCR’s columnist offers a different solution.
The consensus says that the Brett Kavanaugh confirmation process and its narrow outcome pose a crisis of legitimacy for the Supreme Court.
And, within 24 hours of his swearing in, the newly minted justice acknowledged the clamor, and stepped forward to address the situation. He had hired his four law clerks, he announced, and all four are women.
In this way, he seemed to argue, he had expressed his devotion to gender equity. The whole controversy around that issue must have been a mistake.
Putting aside for now the riddle of why anyone might think that hiring female law clerks is a response to the industrialized trashing of a woman who accused you of sexual assault, we still face the question of how the hiring of junior federal employees became a vehicle for judicial self-expression.
And what exactly do these hires express?
Groucho Marx legendarily resigned from the Friars’ Club by writing to the membership committee, “I don’t care to belong to a club that would have someone like me as a member.”
Justice Kavanaugh embodies the polar opposite point of view—or way of life. We can’t ignore the fact that, in the end, membership is what this present moment is all about.
Kavanaugh’s career is a model of its kind—that is, of the kind associated with the distribution of ecclesiastical patronage in the more corrupt days of the Renaissance Church of Rome. Membership is its key.
Justice Kavanaugh wants, has always wanted, sought early, and apparently will pay almost any cost to retain, membership. Now, he is in a position to bestow its gaudy prizes.
He joined the Federalist Society and climbed on the escalator early. He held the handrail, and the process carried him smoothly through legacy admission to feeder school, where he cultivated “feeder professors” who fed him to “feeder judges,”until he had ripened into a “feeder judge” himself.
The prestige of the Supreme Court has always had a certain manufactured Wizard of Oz quality to it.
All that the Court’s work really requires is office space and a library for nine judges and their staffs. Instead the building where this work now occurs is a grandiose marble temple, a venue suitable for the ceremonial opening of beasts and fowl and the priestly reading of their entrails—a setting intended to awe.
It is not only the Republican versus Democrat partisan divide that threatens the Supreme Court’s legitimacy in the aftermath of the Kavanaugh hearings; it is also the glaring contrast between the Court’s pretensions to Olympian detachment and the reality of its for-the-members, by-the-members, majority that the Kavanaugh confirmation process has stripped bare.
What matters—if membership is to be achieved—is dedication to the simple position that it is essential that “our” team wins.
Membership means inclusion, but it also means that someone has to be excluded. For “our” members to win in any satisfying way, someone has to lose.
Our legacy admissions must survive; their affirmative action must disappear. Our sexual activities must be immune; women’s reproductive rights must be curtailed.
Membership requires maintenance: secret handshakes, tokens of arrival.
Justice Kavanaugh’s life is an unbroken series of these gestures.
When Kavanaugh invoked the appointment of his law clerks for a second time (during his speech at his ceremonial swearing in) it was to defend himself against charges of misogyny.
But that speech crystallized the fact that the confirmation was not a victory for him alone; it was a victory for the membership—for the idea of membership—that was being celebrated. Yes, these clerks were women, but they had been fed to him, and by the authorized feeders, in a process that makes the Freemasons look transparent.
It is worth remembering that while this episode has a right-wing cast of characters, the mechanism was painstakingly constructed over decades in reaction to (even emulation of) what the right saw as a prevailing liberal version of the procedure, with the ACLU and ADA pulling the levers and throwing the switches.
Consider this modest proposal.
Supreme Court and Court of Appeals clerks will be chosen from a diverse pool of qualified applicants, many with clerkship experience, by an eclectic, experienced, rotating committee (or committees) maintained by the Administrative Office of the United States Courts. The best young lawyers will be chosen as a class, and randomly assigned to individual justices and judges.
No “feeder” professors (such as Yale’s egregious “Tiger Mother,” Amy Chua, whose “look a certain way” advice to women aimed to make them delectable to Kavanaugh in his Circuit Court incarnation).
No “feeder” judges (such as the sex-addled Alex Kozinski, whose clerks were induced to accept without complaint his little porn seminars) or are involved in the process. No winks, no nods (for or against) from former clerks. No backs are scratched. No tactical silent acceptance of harassment to maintain one’s place is incentivized.
Throw out the whole corrupt, incestuous process, along with the sale of indulgences.
We might then get a diverse group: maybe, now and then, even someone from a state university! Maybe someone who didn’t know anyone they are supposed to know or exactly what suit to wear will get a clerkship.
I realize that this modest proposal of mine will be greeted as if it were Jonathan’s Swift’s modest proposal to use Irish babies as a food source during the Famine, but the howling will just show you how far things have gone. The protagonists no longer see anything odd about this process.
The professors will scream. Tough. There are law professors with bright students across the country. Distinguish yourself by your scholarship, not by your status as eminence gris.
Won’t the “magical” relationship of justice and clerk be undermined? Good. All of these people have actual families of their own, and the ersatz “family” of the judicial chambers is really a little icky, especially when financed by public funds, and it is saturated with power. These are public employers and public employees.
The clerk and the justice may not be ideological soulmates on their first date? Fine. A little friction might be a good thing. The justice is still the boss, the clerk still has to do the research, and maybe the two will learn from their dialogue. They can form their relationship while doing the work well, not through a grooming and matchmakers’ process preceding the hiring.
The justices will certainly be unhappy too: the incense-infused process of nominating and choosing clerks has become one of the expected perks of their job. An annual parade of interviews with fawning applicants provides a nice break.
They’ll live. There are other perks. Yes, it’s pleasurable. Why do we indulge them?
What I am proposing is not the end of the world. It is one very small step toward reclaiming the Supreme Court’s legitimacy by making it clear that it is a constitutional court that decides cases, not a royal or papal court that manages careers and distributes preferments.
The Court’s best strategy now (as Jennifer Rubin suggested in a recent column) is not to shout more loudly about its sacrosanct status but to take small—really very, very small—steps like this to strip away practices that have become normalized. (Giving up speeches to the members’ “feeder” organizations is another.)
Behave like a court in a democracy. Act as scholars and judges, not as courtiers.
James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.
Justices Neil Gorsuch and Brett Kavanaugh may end up not agreeing on whether federal law requires authorities to detain — without a bond hearing — those legally in the U.S. who have committed certain crimes that make them eligible for deportation.
It appeared during oral arguments Wednesday that President Trump’s two nominees to the Supreme Court might play key roles in deciding the rights of some immigrants to challenge their detention during deportation hearings, reports the Washington Post. It wasn’t clear that they would arrive at the same conclusion. The question was whether federal law requires authorities to detain — without a bond hearing — those legally in the U.S. who have committed certain crimes that make them eligible for deportation. Soe immigrants had been in the U.S. for years without incident after completing their jail terms. They were picked up and held in detention without a chance for release while fighting the deportation orders.
Justice Neil Gorsuch seemed concerned that the law gave federal officials too much power to bring in such people even decades after they had completed sentences for what could be somewhat minor crimes. “Is there any limit on the government’s power?” Gorsuch asked Justice Department lawyer Zachary Tripp. Justice Brett Kavanaugh said there might be a reason for the court not to impose a time constraint on the government. “Congress knew it wouldn’t be immediate, and yet Congress did not put in a time limit,” Kavanaugh told Cecillia Wang of the American Civil Liberties Union, representing a class of people who had been detained. “That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so.” As is often the case, the justices were debating what lower courts have found to be ambiguous wording in a federal statute. It says the attorney general “shall take into custody any alien” who has committed certain offenses “when the alien is released.”
In his first day on the bench as a U.S. Supreme Court justice, Brett Kavanaugh was not the most frequent questioner but showed he was fully prepared for the vexing ambiguities of a federal sentencing law despite little time to get up to speed. Justice Samuel Alito said “we have made a royal mess” of the law.
In his first day on the bench as a U.S. Supreme Court justice, Brett Kavanaugh was not the most frequent questioner but showed he was fully prepared for the vexing ambiguities of a federal sentencing law despite little time to get up to speed, reports the National Law Journal. With his wife, two daughters and retired Justice Anthony Kennedy watching, Kavanaugh appeared relaxed and engaged before and during two hours of oral arguments. Mike Davis, chief counsel to Senate Judiciary Chairman Chuck Grassley (R-IA), who led the confirmation push, attended. Sitting at the far right corner of the bench, Kavanaugh chatted and laughed with his seatmate, Obama appointee Elena Kagan, before arguments began on what Justice Samuel Alito later would call a statute that “a majority of the court really hates,” the Armed Career Criminal Act.
The night before, speaking at the White House, Kavanaugh said he would join the bench with “no bitterness” about confirmation proceedings at which his credibility and temperament were questioned. Despite the intense emotions surrounding Kavanaugh’s confirmation hearings, at which he was accused of sexual misconduct in his high school and college years—he denied the claims—there were no attempts to protest inside the courtroom. The new justice’s debut was in marked contrast to Justice Neil Gorsuch’s first argument day. Gorsuch, who like Kavanaugh was nominated by President Trump and attended the same suburban Maryland high school, jumped right into questioning in his first case. Kavanaugh asked eight questions in two hours in a businesslike, straight-forward manner, pressing the advocates at times for more complete answers to his questions. Alito’s frustration with the Armed Career Criminal Act boiled over in one argument when he said, “we have made a royal mess” of the law.
After a bitter confirmation fight, Brett Kavanaugh heard his first Supreme Court cases on Tuesday. They involved mandatory sentencing for career criminals. On Wednesday, he hears an immigrant detention case where his vote could be key.
A Supreme Court with a new conservative majority took the bench on Tuesday as Brett Kavanaugh, narrowly confirmed after a bitter Senate battle, heard his first arguments, the Associated Press reports. It was a moment conservatives have dreamed of for decades, with five solidly conservative justices. Kavanaugh’s predecessor, Anthony Kennedy, was a more moderate conservative and sometimes sided with the four liberal justices. Kavanaugh is expected to be a more decidedly conservative vote, tilting the court right and leaving Chief Justice John Roberts closest to the ideological middle. Kavanaugh’s first two cases involve mandatory sentencing enhancement provisions of the Armed Career Criminal Act (ACCA), reports SCOTUSblog. In Stokeling v. United States, the court considers whether a state-law robbery offense meets the federal law’s definition of a violent felony. The second argument in consolidated cases, United States v. Stitt and United States v. Sims, involve the generic definition of burglary for the purposes of an ACCA enhancement.
A case the court hears Wednesday involves the detention of immigrants, an issue on which Kavanaugh’s vote could be key. Republicans had hoped to confirm Kavanaugh in time for him to join the court lat week at the start of the new term. Instead, the former D.C. Circuit judge missed the first week of arguments as the Senate considered an allegation that he had sexually assaulted a woman in high school. Kavanaugh hired four clerks, all women, the first time that has happened. As the newest justice, Kavanaugh takes notes for the court when they meet for private conferences. He’ll also be the one to answer the door if someone knocks to deliver something such as coffee or forgotten glasses, and he sits on the committee that oversees the court’s cafeteria, which is open to the public.
Even in an era of acute political transformation and “relentless Trumpism,” Nan Aron writes for The Nation, “the battle over Brett Kavanaugh has plumbed a deep well of anger and pain that was waiting to come to the surface.”
Writing for The Nation, Nan Aron says the bruising Senate confirmation process and quick, private swearing-in of Brett Kavanaugh has led to “a moment of reflection and some exhaustion; it’s also the moment when traditionally, progressives have packed up their tents and gone home.” But even in an era of acute political transformation and “relentless Trumpism,” she writes, “the battle over Brett Kavanaugh has plumbed a deep well of anger and pain that was waiting to come to the surface.”
She continues, “I now believe that for a new generation of voters—especially women—the Senate’s catastrophic handling of this nomination and its contempt for Dr. Christine Blasey Ford’s act of national witness is a defining moment, when business as usual will no longer do. For 40 years, the right wing has sent its voters to the polls with the federal courts as a priority. It also built a machine for manufacturing and marketing the kind of nominee exemplified by Brett Kavanaugh: conventionally credentialed, politically connected, and partisan to the core. Progressives will never have an appetite for cookie-cutter nominees or the conformity-imposing systems that build them. But we have the power as voters to make the courts an issue and a matter of real accountability and electability for senators, this year, in 2020 and beyond…We have arrived at this clarity through a painful process, but we have arrived, and with a midterm election right around the corner. And that’s just the beginning.”
The furor over Supreme Court nominee Brett Kavanaugh’s alleged sexual misconduct as a 17-year-old raises questions about how he would rule on key juvenile justice cases if he is confirmed by the Senate, a John Jay College conference was told Thursday.
The furor over Supreme Court nominee Brett Kavanaugh’s alleged sexual misconduct as a 17-year-old raises questions about how he would rule on key juvenile justice cases if he is confirmed by the Senate, a John Jay College conference was told Thursday.
“I bet you [Kavanaugh] is going to be pretty pissed off about how we all tried to derail his nomination with something he did when he was 17,” said Elton Anglada, president of the Juvenile Defender Association of Pennsylvania.
Anglada said that if Kavanaugh were asked to rule in cases that required the Court to re-examine previous rulings establishing that youths under 18 could not be held legally responsible for criminal acts, based on scientific findings about adolescent brain development, he might be tempted to turn his current critics’ words against them.
A procedural vote on Kavanaugh’s nomination is scheduled Friday, in the aftermath of an FBI investigation into allegations of sexual misconduct brought by three women when he was a student at Georgetown Prep and Yale University. The investigation reportedly could not corroborate the allegations. If the procedural vote passes, the full Senate may vote on the nomination as early as Saturday.
In several landmark rulings, the Court has steadily chipped away at previous legal precedents that allowed individuals to receive the death penalty or life-without-parole sentences for crimes they committed as minors. The justices ruled in Roper v Simmons (2005) that it was unconstitutional to impose the death penalty for a crime committed by a child under the age of 18, reversing a 1989 Stanford v Kentucky ruling that allowed juveniles aged 16 years or older at the time of their crimes to receive the death penalty.
Then, in Graham v Florida (2010) the Court found that sentencing juveniles to life without the possibility of parole for a non-homicidal crime is also a violation of the U.S. constitution, ruling that individuals who committed such crimes as minors could be released based on “demonstrated maturity and rehabilitation.”
Two years later, in Miller v Alabama, the Court ruled it was unconstitutional to sentence juveniles to mandatory life without parole.
All three cases were the product of long, hard-fought campaigns by justice reformers to incorporate into U.S. jurisprudence findings by numerous psychologists and behavioral experts that adolescents were unable to take responsibility for their actions or to understand the difference between right and wrong.
They represented significant achievements in what was an historic effort to use modern science about brain development to transform how young people were treated in the criminal justice system.
But they were not necessarily settled law, Anglada said at the John Jay conference, which was organized to examine “Unfinished Business” in juvenile justice, for journalists selected as reporting fellows by the Center on Media, Crime and Justice at John Jay.
Editor’s Note: The Center on Media, Crime and Justice publishes The Crime Report.
According to Anglada, who also serves as assistant chief of the Juvenile Unit at the Defender Association of Philadelphia, the 5-4 decisions were ultimately carried by now-retired Justice Anthony Kennedy (whose seat Kavanaugh has been nominated to fill).
Kennedy wrote majority opinions for two of them—Roper v. Simmons and Graham v. Florida, in which he cited research that found juveniles to be less mature and possess less of a sense of responsibility for their actions than adults.
“These cases are going to go back up to the Supreme Court,”Anglada predicted. “And I think about myself standing in front of Kavanaugh three or four years from now arguing that you shouldn’t revisit Graham, Miller and Roper and my client should be treated differently because he’s a juvenile, and we don’t want to hold a juvenile responsible for his entire life for something he did 35 years ago.
“Say that to Brett Kavanaugh with a straight face and see what answer you get.”
Other speakers at the conference noted that juvenile justice was returning to a “rehabilitative and therapeutic model” after an era in which one-dimensional punitive strategies dominated the approach to youthful criminality.
Farewell to the Era of ‘Super-Predators”
The era was driven by a false narrative of the emergence of youthful “super-predators” responsible for a wave of violence, fanned by media sensationalism and several academics, said Michael Umpierre, a senior research fellow at the Center for Juvenile Justice Reform of the McCourt School of Public Policy at Georgetown University.
But since the beginning of this century, a “developmental approach” based on the notion that punishment should be developmentally appropriate for adolescents has been “taking hold across the country,” Umpierre said.
“The developmental approach embodies the recognition that adolescents are different than adults and from children too,” he added, noting that the number of juveniles now locked up in prison was half that of a decade ago.
Researchers, advocates and legal experts told the conference that significant juvenile justice challenges remained—most importantly the racial and ethnic disparities that affect authorities’ responses to juvenile misbehavior—and they warned that federal support for addressing those disparities was now in doubt.
Marsha Levick, Juvenile Law Center
“It’s impossible to talk about youth justice without talking about race,” said Marsha Levick, deputy director and chief counsel of the Juvenile Law Center, noting recent decisions by the Office of Juvenile Justice and Delinquency Protection (OJJDP), to stop collecting data on disproportional minority impact, and return to a more punitive language in addressing juvenile misconduct.
“What we measure is what we worked on, and if we’re not collecting data on racial disparities, then we can’t address them.”
Michael Harris, senior attorney for the National Center for Youth Law, said white federal and state policymakers still took a narrow, biased view of young African-American and Latinx offenders as “other people’s kids.”
“They don’t think about how to treat kids as if they were their own kids,” he said, noting that 58 percent of young people detained in juvenile facilities were African American, although African Americans represented just 16 percent of the U.S. juvenile population.
Kim Dvorchak, executive director of the National Association of Counsel for Children, said that despite reforms enacted by state legislatures —some 70 pieces of legislation in at least 36 states have enacted major reforms in areas ranging from raising the age of adult jurisdiction to removing youths from adult prisons over the past decade—there were still major shortcomings.
“Florida has prosecuted 7,800 children as adults in the name of public safety,” she said.
Added Levick: “We need to talk about the way the system continues to screw kids.”
Yet future reforms in juvenile justice may now be held hostage by a new Supreme Court Justice embittered by what he regards as an effort by liberal reformers to wreck his nomination, according to the Philadelphia Defender’s Anglada.
“The doctrine of adolescent development is the most positive advance (in juvenile justice) we have seen since 1998, showing that juveniles have the capacity for change,” Anglada said.
“I don’t think that’s going to play well for adolescent development cases when they come up in front of the court (if Kavanaugh is approved as the ninth Justice).”
This story was prepared from reports by J. Gabriel Ware, Nancy Bilyeau and Stephen Handelman of The Crime Report. Readers’ comments are welcome.
President Trump gets his second member of Supreme Court, climaxing a long, nasty fight. Brett Kavanaugh replaced Anthony Kennedy, but only after the nominee was accused of sexual assault. One Democrat, Joe Manchin (WVA), backed Kavanaugh.
The bitterly polarized Senate narrowly confirmed Brett Kavanaugh on Saturday to join the Supreme Court. The near party-line vote was 50-48, capping a fight that seized the national conversation after claims emerged that Kavanaugh had sexually assaulted women three decades ago, which he emphatically denied, the Associated Press reports. Those claims magnified the clash from a routine Supreme Court struggle over judicial ideology into an angrier jumble of questions about victims’ rights, the presumption of innocence and personal attacks on nominees. The battle featured a climactic roll call that was interrupted several times by protesters in the Senate Gallery before Capitol Police removed them.
The vote gave President Trump his second appointee to the court, tilting it further to the right and pleasing conservative voters who might have revolted against GOP leaders had Kavanaugh’s nomination flopped. Democrats hope that the roll call, a month from elections in which House and Senate control are in play, will prompt infuriated women and liberals to oust Republicans. Senate Majority Leader Mitch McConnell (R-KY) said a vote for Kavanaugh was “a vote to end this brief, dark chapter in the Senate’s history and turn the page toward a brighter tomorrow.” Democratic leader Chuck Schumer of New York looked ahead to November, appealing to voters beyond the Senate chamber: “Change must come from where change in America always begins: the ballot box.” Sen. Joe Manchin of West Virginia, confronting a tough re-election race next month in a state that Trump won in 2016 by a landslide, was the sole Democrat to vote for Kavanaugh. Alaska’s Lisa Murkowski, the only Republican to oppose the nominee, voted “present,” offsetting the absence of Kavanaugh supporter Steve Daines of Montana, who was attending his daughter’s wedding.
The White House found no corroboration of sexual misconduct allegations against Supreme Court nominee Brett Kavanaugh after examining interview reports from the FBI’s latest probe into the judge’s background, Senators are reviewing the report on Thursday.
The White House found no corroboration of sexual misconduct allegations against Supreme Court nominee Brett Kavanaugh after examining interview reports from the FBI’s latest probe into the judge’s background, reports the Wall Street Journal. Senators who will decide Kavanaugh’s fate are set to review the findings on Thursday, and some of them may draw different conclusions. The investigation, which concluded two days before its Friday deadline, has faced mounting criticism from Democrats who said the probe wasn’t comprehensive. Investigators spoke only to one of the three women who made accusations of sexual misconduct against Judge Kavanaugh.
Republicans said the extended FBI background check was a concession to Democrats and wavering Republicans, who demanded it and said its completion without a major revelation should allow Kavanaugh’s nomination to proceed to a Senate vote. Democratic senators claimed that the White House imposed too many restrictions on who the FBI could interview—they didn’t talk to Christine Blasey Ford, Kavanaugh’s accuser, for instance—to make their inquiry’s findings credible. Senate Majority Leader Mitch McConnell (R-KY) set up a Friday procedural vote on Kavanaugh. Three uncommitted Republicans—Jeff Flake of Arizona, Susan Collins of Maine and Lisa Murkowski of Alaska—have said the FBI report would factor significantly into their decision.
The bureau is expected to finish its probe of the allegations against Supreme Court nominee Brett Kavanaugh as soon as Wednesday, leading to a Senate vote this week. Accuser Christine Blasey Ford is demanding to be interviewed.
Christine Blasey Ford’s attorneys have demanded that the FBI interview her and act on investigative leads they have provided for its inquiry into sexual misconduct allegations against Supreme Court nominee Brett Kavanaugh, reports Politico. The bureau is expected to wrap up its time-limited probe of the allegations against Kavanaugh as soon as Wednesday, leading to a Senate vote this week. Majority Leader Mitch McConnell (R-KY) said the FBI report will be available to senators only, not the public. Ford’s attorneys sought a call with bureau officials to discuss the investigation.
All 100 senators will have access to the report in a secure setting. Three of Kavanaugh’s former clerks and two of his former Yale Law School classmates who had formerly joined public letters backing the judge withdrew their support in light of “serious allegations” against the judge. The FBI inquiry is largely focused on allegations that Kavanaugh sexually assaulted Ford when both were in high school, and exposed himself to Deborah Ramirez during their time at Yale. Senate Minority Leader Chuck Schumer (D-NY) has asked McConnell for a briefing for all senators on the FBI’s findings, at least 24 hours before the Senate votes to end debate on the nomination. Whether undecided senators take into account anything other than the FBI report is an open question.