Opinion | The Supreme Court’s Legitimacy Crisis – By Michael Tomasky – NYT

By Michael Tomasky
Mr. Tomasky is editor of Democracy: A Journal of Ideas and a contributing opinion writer. Oct. 5, 2018

The United States Supreme Court.CreditCreditGabriella Demczuk for The New York Times
Test your Supreme Court knowledge: In the entire history of the court, exactly one justice has been

a) nominated by a president who didn’t win the popular vote and

b) confirmed by a majority of senators who collectively won fewer votes in their last election than did the senators who voted against that justice’s confirmation.

Who was it?

If you’re like me, your mind started leapfrogging back to the 19th century. After all, this sounds like one of those oddities that was far more likely to have happened when our democracy was still in formation.

So let’s see … John Quincy Adams lost the popular vote in 1824. Someone he named to the Court? Or Rutherford B. Hayes — lost to Samuel J. Tilden in 1876, then was named president by a rigged commission. Maybe him?”

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Opinion | The Senate Should Not Confirm Kavanaugh. Signed- 1700+ Law Professors (and Counting). – The New York Times

The Senate Should Not Confirm Kavanaugh
Signed, 1,700+ Law Professors (and Counting)
OCT. 3, 2018
“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.” The concern for judicial temperament dates back to our founding; in Federalist 78, titled “Judges as Guardians of the Constitution,” Alexander Hamilton expressed the need for “the integrity and moderation of the judiciary.”

We are law professors who teach, research and write about the judicial institutions of this country. Many of us appear in state and federal court, and our work means that we will continue to do so, including before the United States Supreme Court. We regret that we feel compelled to write to you, our Senators, to provide our views that at the Senate hearings on Sept. 27, Judge Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.

The question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners. Even in his prepared remarks, Judge Kavanaugh described the hearing as partisan, referring to it as “a calculated and orchestrated political hit,” rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators.”

David Lindsay Jr.

Hamden, CT 

If the Senate confirms Kavenaugh to the Supreme Court, it will be one of the lowest points in American History that I could point to. Not only is this candidate a partisan without the proper temperament, but he is in this position because Mitch McConnell refused to let Obama’s spectacular choice, Merrick Garland, come to a vote. A full breach of law and order and decorum. It is not clear our country will ever recover completely from this descent into partisan and unconstitutional rubbish. The silver lining isn’t so great. There will be a blue wave to wash out the Augean Stables, that will be so severe, we will need to recreate an opposition party of merit, to replace the debauched, anti-science and anti-democratic Republican Party.

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Chad Ludington’s Statement on Kavanaugh’s Drinking and Senate Testimony – The New York Times

“I do not believe that the heavy drinking or even loutish behavior of an 18- or even 21-year-old should condemn a person for the rest of his life. I would be a hypocrite to think so. However, I have direct and repeated knowledge about his drinking and his disposition while drunk. And I do believe that Brett’s actions as a 53-year-old federal judge matter. If he lied about his past actions on national television, and more especially while speaking under oath in front of the United States Senate, I believe those lies should have consequences. It is truth that is at stake, and I believe that the ability to speak the truth, even when it does not reflect well upon oneself, is a paramount quality we seek in our nation’s most powerful judges.

I can unequivocally say that in denying the possibility that he ever blacked out from drinking, and in downplaying the degree and frequency of his drinking, Brett has not told the truth.

I felt it was my civic duty to tell of my experience while drinking with Brett, and I offer this statement to the press. I have no desire to speak further publicly, and nothing more to say to the press at this time. I will, however, take my information to the F.B.I.

Charles (Chad) Ludington”

Opinion | The Senate’s Failure to Seek the Truth – By Emily Bazelon – NYT

By Emily Bazelon
Ms. Bazelon is a staff writer at The New York Times Magazine.

Sept. 28, 2018 177 comments

Twice as a reporter, I’ve interviewed women who have accused men of sexual assault and the men they accused. In both cases, the women looked me in the eye and told me about how they’d been raped, and then the men looked me in the eye and told me they’d never raped anyone. All four people spoke with force and emotion. In the moment, I wanted to believe each one. It’s uncomfortable to imagine that someone who seems wholly sincere is not. It’s confusing — it seems unfeeling — to turn away from someone who makes a vehement claim of truth.

If you watched Thursday’s hearing, in particular Christine Blasey Ford’s opening statement and Brett Kavanaugh’s, maybe you know what I mean. So then what? As a reporter, I looked for corroborating evidence as a means of assessing each person’s veracity. What else could I find out, and how did their accounts stack up against that? This is how investigators do their work. They find out as much as they can about the surrounding circumstances. Then it’s up to judges to weigh the facts and decide which account is most credible.

Judge Kavanaugh didn’t sound as if he was thinking like a judge. His partisan attack on Democrats wasn’t judicial, in any sense of the word. His approach to evidence wasn’t either.”

Opinion | This Hearing Is Stacked Against Christine Blasey Ford – By Jill Abramson – NYT

By Jill Abramson
Ms. Abramson is a former executive editor of The Times and author, with Jane Mayer, of “Strange Justice: The Selling of Clarence Thomas.”

Sept. 27, 2018

“There is a reason Thursday’s Senate Judiciary Committee hearing will be short and feature only two witnesses, the Supreme Court nominee Judge Brett Kavanaugh and his accuser Christine Blasey Ford. Republicans have designed the hearing to end in a “he said, she said” stalemate. No matter how credible Dr. Blasey is, isolating her as a lone accuser is the most effective political strategy for confirming Judge Kavanaugh.

His strategy will be simple: categorical denial.

Republicans will insist, despite the swirling uncertainty, including a third woman who came forward Wednesday with sexual misconduct allegations against him, that Judge Kavanaugh deserves the benefit of the doubt and should be confirmed.

Republicans will then be able to claim that fairness had been served because both witnesses were heard. But Americans, denied the testimony of other relevant witnesses who could support Dr. Blasey’s account and denied an F.B.I. investigation into other evidence, won’t be any closer to the truth.”

Opinion | Supreme Confusion – Gail Collins and Bret Stephens – NYT

“Bret Stephens: Good morning, Gail. I know we’ll have plenty to say about Blasey v. Kavanaugh today, but, first, Rod Rosenstein! The Times had a bombshell story last week saying the deputy attorney general felt so badly used by President Trump last year after the firing of James Comey that he considered wearing a wire to record the president’s ranting. Rosenstein denied it categorically and the Republican establishment urged Trump not to fire him.

First thing Monday morning, news breaks that Rosenstein is close to resigning. Or not. Two questions for you. First, should we rename Eighth Avenue, where we converse, “Avenue of the Rosenstein?” Second, is this the beginning of the end for the Trump presidency or the beginning of the end for the Justice Department?

Gail Collins: Yow, Bret. What was that old Chinese curse about living in interesting times?

I have a lot more faith in the staying power of the Justice Department than in the staying power of the president. But we’ll see. And renaming Eighth Avenue — you know the way Rosenstein’s fate has been bouncing around, I’m thinking maybe we could find him a nice traffic rotary upstate.

Bret: If Trump fires Rosenstein, he gets rid of the guy who has been Robert Mueller’s main protector at Justice. Yet firing him on charges of insubordination means believing that the Fake News got the story about Rosenstein’s 25th Amendment musings right. This may be the ultimate Trumpian dilemma.”

Opinion | The Kavanaugh Hearings Are Over. Now What? – by Michael Tomaski – NYT

“But here’s the second and more important reason to give the red-state Democrats a pass here. This battle wasn’t lost last week, and it sure won’t be lost by these red-state Democrats if they vote to confirm. It was lost in 2016.

It was lost by the Democratic Party, the Hillary Clinton campaign, and the courts-oriented grass roots and public-interest groups that didn’t do nearly enough to explain to the Democratic rank and file in 2016 that a Clinton victory would mean a liberal court majority for the first time in 30 years.

I kept waiting and waiting that fall for Ms. Clinton to emphasize this point, or for other prominent figures to say, “Look. You’re not wild about Hillary Clinton? Fine. Are you wild about Roe v. Wade, same-sex marriage, protections for immigrant children, campaign finance contribution limits? Then you’d damn well better vote.”

It never happened. So that’s on them. But honestly, regular voters should have been mature enough to have figured this out on their own. They’re to blame, too.”

Opinion | Kavanaugh Will Kill the Constitution – by Paul Krugman – The New York Times

I have watched almost half of the Brett Kavanaugh hearings. He is a great salesman, and a terrific friend, and listener. But, I think he is too extreme to be on our Supreme Court. As usual, Paul Krugman sharpens my knowledge and analysis. He wrote:
“Remember, Kavanaugh cut his teeth working for the Starr investigation into Bill Clinton — a genuine witch hunt that consumed seven years and tens of millions of dollars without finding any evidence of wrongdoing. And he personally spent years obsessively pursuing crazy conspiracy theories about the suicide of Vince Foster.

Then he spent time working in the George W. Bush White House, which made torture a routine part of policy. In his 2006 confirmation hearing for an appellate court judgeship he declared that he played no role in those decisions. Was he telling the truth? The answer might lie in those thousands of pages of records the Trump administration is refusing to release.

Strange to say, however, he emerged from that experience as someone who believes that presidents can’t be subject to legal investigations.

Meanwhile, Kavanaugh accumulated a record as an appellate judge — one that places him far to the right on everything from the environment, to labor rights, to discrimination. His anti-labor views are especially extreme, even for a conservative.

So who is Brett Kavanaugh? If he looks like a right-wing apparatchik and quacks like a right-wing apparatchik, he’s almost surely a right-wing apparatchik. Which brings us to the coming constitutional crises.”

I was deeply moved by the testimony of three children on day three. One was shot at in Florida by an assault rifle. She pulled a dead student over her body for protection. Kananaugh ruled that assault rifles could not be banned. One was an asthmatic in Maine. Kavanaugh ruled multiple times to role back clean air regulations.

The Empty Supreme Court Confirmation Hearing – by Linda Greenhouse – NYT

“The Senate Judiciary Committee’s confirmation hearing for Judge Neil M. Gorsuch was just plain embarrassing, and not only for the nominee. But let’s begin with him, skipping over his Republican enablers, who had nothing to do but lob softball questions and praise his answers. If Judge Gorsuch wasn’t the least forthcoming Supreme Court nominee ever to appear at a confirmation hearing, it’s hard to imagine one who could be less forthcoming while still breathing. More interesting and less predictable answers could have come from Siri on an iPhone.

The previous contender for the title of least forthcoming was Justice Antonin Scalia, who died in February 2016 and whom Judge Gorsuch would replace. Nominated by President Ronald Reagan in 1986 and confirmed unanimously, then-Judge Scalia wouldn’t even tell the Judiciary Committee whether he supported Marbury v. Madison, the landmark 1803 decision in which the court under Chief Justice John Marshall established the principle that federal courts can invalidate unconstitutional statutes.”

Thank you Linda Greenhouse. I especially liked your defense of Ruth Ginsberg, who did actally answer many questions.

Here is a comment I reluctantly agree with. I say reluctantly, because I watched most of the hearing, and liked Gorsuch. He was warm, appealing and impenetrable.

PaulB

Cincinnati, Ohio 4 hours ago

The only way to judge a nominee is by his/her lower court rulings. Stealth jurists such as David Souter are exceedingly rare; most judges are consistent in their decisions, and leave a law library filled with past cases that reveal their judicial philosophies. Gorsuch, on that evidence, is a staunch conservative who, if past is prologue, will do great damage to church-state separation, support the disgrace of campaign finance as free speech, and limit the options of women under the law.

It is the Republican Senate, not Gorsuch, that have brought the nation to this miserable juncture. Their refusal to even consider Merrick Garland will stand as precedent for many years as the quintessential example of the legislative branch’s usurpation of the judiciary.