Monday, August 13, 2018

The questions we might want to ask SCOTUS nominee Brett Kavanaugh ...

… will be asked by Sen. Mazie Hirono. Joan McCarter at the Daily Kos reports The Senate’s quietest rock star has some very tough questions for Trump’s Supreme Court nominee.

Quietly and determinedly, Democratic Sen. Mazie Hirono of Hawaii has become one of the fiercest voices among the still too-small cadre of women senators. She’s doing it in the nomination hearings of all five of the committees she sits on, starting with these questions.

“Since you became a legal adult, have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature?”

“Have you ever faced discipline or entered into a settlement related to this kind of conduct?”

Hirono started asking the questions—which she will also pose to Supreme Court nominee Brett Kavanaugh—seven months ago. She spoke with Huffington Post’s Jennifer Bendery about how the Me Too movement has forced the issue into “a legitimate area of inquiry” for those who would serve in the highest levels of government. It’s particularly true given the man who is nominating them, a serial abuser and assaulter. She’s asked that question of nearly 100 nominees, according to HuffPo’s count, putting the nominees on the spot often in front of their spouses and children.

Awkward for them, perhaps, but for Hirono? “Not anymore,” she told Bendery. “The questions have never been asked before. And why is that? Because it would take a woman to ask questions like that, I would say.” She’s doing it because she knew there was “every potential” for her colleagues in the Senate to entirely ignore the Me Too movement roiling around them.

Those questions will have extra resonance when posed to Kavanaugh, for while he hasn’t been accused of abusing his power by any women, he clerked for and has remained close to former U.S. Circuit Judge Alex Kozinski, who retired last year after 15 women accused him of sexual harassment. Kavanaugh was there, working with Kozinski, during some of the alleged incidents. What did Kavanaugh know while he was there? What did he do in response? Another former clerk, law professor turned romance novelist Courtney Milan, says Kavanaugh had to know because of his close working relationship with the judge. “They worked together on hiring. Kozinski regularly used belittling and demeaning language in hiring with us as his clerks. I cannot attest to whether he used it in Kennedy screening, but it would surprise me if he didn’t.” (The “Kennedy screening” refers to Kozinski’s being basically a feeder of clerks to Supreme Court Justice Anthony Kennedy.)

I think it’s a legitimate area of inquiry,“ Hirono said, answering whether she will ask this again in the Judiciary Committee hearing with Kavanaugh. ”It’s something that will get asked." She’s preparing herself well, with binders full of the documents that Republicans have so far deigned to release and copious notes and questions drawn from them. She also has serious questions for him about his hostility toward women’s reproductive rights, the Affordable Care Act, and environmental rules protecting clean air and water.

Hirono is going to be laser-focused on Kavanaugh, even though it’s highly unlikely Republicans will break ranks because, she says, “some battles […] are worth fighting, regardless of the outcomes. […] I’m hopeful the people in our country will realize these judges who are appointed for life are going to make decisions that affect their life every single day―and that this is the lasting legacy of Trump.” These hard questions will also put Republican Sens. Susan Collins and Lisa Murkowski, who have staked a good part of their careers on standing up for women’s rights, in the position of having to answer for themselves and their constituents.

An article in The New York Review of Books provides a broader list of Ten Questions Brett Kavanaugh Must Answer. ( The author, David Cole is the National Legal Director of the ACLU and the Honorable George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center.)

… [because] Trump expressly vowed as a candidate to appoint justices who would overrule Roe v. Wade, it is incumbent upon the Senate to pose probing questions to Kavanaugh—and to require him to provide meaningful answers, not artful dodges. Nominees all too often avoid answering questions about their views by simply describing existing Supreme Court doctrine and then insisting they cannot say how they would vote on any particular matter that might come before them. But in speeches and writings while a judge, Kavanaugh has repeatedly expressed his own views on many matters that might come before him, including whether presidents should be subject to civil and criminal lawsuits; if he could express his views there, he should not be permitted to avoid expressing them on other topics in the Senate confirmation hearing.

Here, then, are ten questions I suggest the senators ask Kavanaugh. These questions avoid asking about any specific case, and seek the nominee’s own views, not a description of Supreme Court law. Senators will have to be insistent about getting responses, however, if the hearings are to have any value.

Scriber’s picks are
(1) “Are you committed to interpreting the Constitution as it was understood at the time it was written, or do you agree that its meaning evolves over time through Supreme Court interpretations?”
(4) “You have defended a robust conception of executive power. Recently, the Supreme Court said that its decision upholding the internment of Japanese Americans on the basis of race and national origin was wrong. Can you name other historical examples where you believe presidents acted unconstitutionally in the name of national security? Should the courts have rejected presidential assertions of national security in those cases, and on what basis?”
and (10) “President Trump has nominated you to the career opportunity of your lifetime. If presented with a case involving his personal interests, what standard will you use in deciding whether to recuse yourself from the case?”

I reason that much or all of disputes over civil rights (including reproductive choice, marriage choice, gender equality, contraception, and abortion) flow from how one regards (1). The other two picks, (4) and (10), address executive powers which will, I predict, be front and center as the Mueller investigation gets closer to Trump, his associates, and his family.

After the break, read the full list of questions and (lightly edited by Scriber) author’s comments.

Scriber has edited the Cole’s comments on each question for brevity.

(1) Are you committed to interpreting the Constitution as it was understood at the time it was written, or do you agree that its meaning evolves over time through Supreme Court interpretations?

This is perhaps the single most important question for Kavanaugh. Over its history, virtually all Supreme Court justices have interpreted the Constitution as evolving over time. If it did not, segregation would still be constitutional, sex discrimination would not be barred by the Equal Protection Clause, the First Amendment would not protect speech that erroneously attacks the character of public officials, and the Constitution would not protect marriage equality, abortion, or contraception. … Another conservative vote for this backward-looking [“originalist”] method of understanding constitutional rights would jeopardize many of the advances that we hold most dear …

(2) Do you believe the Constitution’s guarantee of individual liberty protects the right to make personal decisions regarding one’s own body and intimate relationships, including whom one chooses to marry, how to raise one’s children, whether to use contraception, and whether to obtain an abortion?

… Given Kavanaugh’s record and Trump’s promise, senators must demand a substantive answer about Kavanaugh’s own view. If he will not acknowledge this right, so central to American’s lives, then, like Robert Bork before him, he would very likely be unwilling even to recognize a right of contraception—a view that the Senate considered so far outside the mainstream as to warrant rejecting Judge Bork’s confirmation in 1987.

(3) Do you agree that, as Justice Kennedy has written for the Court, “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives”? What impact should that have on the constitutionality of laws restricting abortion?

Access to contraception and abortion are central to the struggle for women’s equality. A recent study finds that being denied an abortion results in increased household poverty and dependence on public assistance and reduced employment. A judge who declines even to acknowledge these facts would blind himself to the consequences of his decision for the status of women in our society.

(4) You have defended a robust conception of executive power. Recently, the Supreme Court said that its decision upholding the internment of Japanese Americans on the basis of race and national origin was wrong. Can you name other historical examples where you believe presidents acted unconstitutionally in the name of national security? Should the courts have rejected presidential assertions of national security in those cases, and on what basis?

… If courts do not enforce constitutional and legislative limits on the executive branch’s broad invocations of national security, the president will have a blank check to violate fundamental individual rights.

(5) In your 2006 confirmation hearings for a federal court judgeship, you said that you “absolutely” believed President Bush’s statements that the United States does not torture and does not condone torture. Knowing what you know now about the United States’s use of waterboarding and other coercive methods against detainees, do you still believe that the United States did not torture?

Kavanaugh worked for President Bush in the immediate aftermath of the terrorist attacks of September 11, when President Bush authorized actions that are widely acknowledged here and abroad to be gross violations of human rights, including torture by waterboarding. A Supreme Court nominee who does not acknowledge that waterboarding is torture would raise serious concerns about his willingness to put his obligation to law above his personal or political ties.

(6) Do you believe that public colleges and universities have a compelling interest in ensuring that they have diverse student bodies?

The Supreme Court has held for decades that race-based affirmative action is permissible to further a compelling interest in maintaining diverse student bodies, as long as race is considered as one factor among others in a holistic assessment of applicants. But as noted above, Justice Kennedy provided the crucial fifth vote in the court’s most recent decision upholding the practice. If Kavanaugh is unwilling to recognize the long-established principle that diversity is a compelling interest, he may provide the fifth vote to end affirmative action.

(7) Does the free exercise of religion clause give individuals a constitutional right to engage in conduct that harms others, or does one person’s free exercise end at the point that it inflicts harm on others?

Opponents of certain constitutional rights, including the right to abortion and to marriage equality, have begun cloaking actions that violate these rights in the exercise of religion. A bakery, supported by the Trump administration, argued in the Supreme Court this term that the owner’s religious beliefs permitted the store to discriminate on the basis of sexual orientation by refusing service to a gay couple seeking to buy a wedding cake. The Supreme Court declined to hold that the free exercise of religion allows individuals to invoke religion as a justification for inflicting harm on others; on the contrary, it insisted that the “general rule” is that religious objections do not allow businesses to violate generally applicable nondiscrimination laws. (The court ruled for the baker, but only on the ground that the process that adjudicated his case was infected by religious bias). If Kavanaugh is unwilling to recognize religious freedom stops where it inflicts harm on others, he could abet a campaign to undermine the civil rights of everyone—not just same-sex couples—in the name of religion.

(8) Do you agree that a core function of the Supreme Court in our democratic society is to protect the rights of minorities that cannot protect themselves in the political process? Does that principle justify the Court’s precedents protecting LGBT individuals?

The Supreme Court has had an important part in protecting the rights of those who lack the political power to have their rights protected through the democratic process. Minority groups and dissidents will by definition be disadvantaged in a majoritarian political system. That is why the Court looks with such skeptical scrutiny on laws that target racial minorities or unpopular speakers. On similar grounds, there are strong arguments for recognizing that government discrimination against LGBT individuals should be viewed with heightened scrutiny by the courts, as is discrimination on the basis of sex, religion, and race. Kavanaugh’s views could determine whether LGBT individuals will be entitled to equal dignity and treatment under the Constitution.

(9) Do you agree that US courts may consider international law in interpreting US laws and, in particular, that US courts may consider whether US laws comport with international law?

Kavanaugh has written that federal courts should not look to international law when reviewing statutes or executive branch actions, even in contexts squarely governed by international law, such as the laws of war. … Kavanaugh should be asked whether he believes it appropriate to look to international law when interpreting statutes concerning matters that international law addresses, and constitutional provisions such as the Eighth Amendment prohibition on cruel and unusual punishment or the Fourteenth Amendment’s due process clause.

(10) President Trump has nominated you to the career opportunity of your lifetime. If presented with a case involving his personal interests, what standard will you use in deciding whether to recuse yourself from the case?

The Supreme Court could well decide any number of issues arising out of the Robert Mueller inquiry, which is investigating the president’s alleged obstruction of justice. While working for Independent Counsel Kenneth Starr’s investigation of Bill Clinton, Kavanaugh wrote the section of the Starr report that justified impeaching Clinton for, among other things, lying and obstructing justice. In 2009, however, he wrote an article arguing that presidents ought not to be subject to civil lawsuits, criminal indictments, or even criminal investigations while in office. If any of those issues reach the Supreme Court, will Kavanaugh, appointed by Trump, be able to serve, or will he recuse himself in light of having directly benefitted so substantially from President Trump’s selection?

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