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The Susan Collins Excuse

The Susan Collins Excuse

I listened very carefully to Senator Collins as she detailed her excuses for letting Brett Kavanaugh become a Supreme Court Justice. Two aspects of her speech were particularly absurd and kind of appalling. Her claims that Kavanaugh is a moderate akin to Justice Stevens were beyond absurd. The most appalling aspect of her speech was how she dismissed the claims that Kavanaugh sexually abused women in high school and/or college:

Some of the allegations levied against Judge Kavanaugh illustrate why the presumption of innocence is so important. I am thinking in particular not at the allegations raised by professor Ford, but of the allegations that when he was a teenager Judge Kavanaugh drugged multiple girls and used their weakened state to facility gang rape. This outlandish allegation was put forth without any credible supporting evidence and simply parroted public statements of others. That’s such an allegation can find its way into the Supreme Court confirmation process is a stark reminder about why the presumption of innocence is so ingrained in our a American consciousness. Mr. President, I listened carefully to Christine Blasey Ford’s testimony before the Judiciary Committee. I found her testimony to be sincere, painful, and compelling. I believe that she is a survivor of a sexual assault and that this trauma has upended her life.

She believes Dr. Ford but then she went on and on like a defense attorney why she did not believe her when she clearly said it was Kavanaugh. But the real stunner was when she said this:

I do not believe that the claims such as these need to be proved beyond a reasonable doubt. Nevertheless, fairness would dictate that the claims at least should meet a threshold of more likely than not as our standard. The facts presented do not mean that Professor Ford was not sexually assaulted that night or at some other time, but they do lead more to conclude that the allegations fail to meet the more likely than not standard.

I guess “the facts presented” is the key aspect as we know the FBI was not allowed to pursue corroborating evidence, which is why this episode is clearly absurd. But does Senator Collins truly grasp this more likely than not concept? I’m an economist not a lawyer but I have worked with tax attorneys and accountants on the transfer pricing aspects of tax provisions under FIN 48:

Under the Interpretation, absent the existence of a widely understood administrative practice and precedent of the taxing authority, an enterprise cannot recognize a tax benefit in its financial statements unless it concludes that it is more likely than not that the benefit will be sustained on audit by the taxing authority, based solely on the technical merits of the associated tax position. In this evaluation, an enterprise must assume that the position (1) will be examined by a taxing authority that has full knowledge of all relevant information and (2) will be resolved in the court of last resort.

Let’s key in on “full knowledge of all relevant information”. I have seen multinationals trying to convince financial auditors not to impose tax reserves based on some suspect report that key intercompany prices are arm’s length and where material information was not disclosed. In my experience, the financial auditors would refuse to give FIN 48 clearance until this information was disclosed and properly evaluated. It is well known that the latest FBI inquiry literally ran away from material information that may have corroborated Dr. Ford’s testimony. So when Senator Collins raises this More Likely Than Not standard – she should know better given the fact relevant information was not properly explored. Nicole Belle makes a strong case that the Republicans even knew ahead of time that Dr. Ford’s allegations are true:

Don’t Kid Yourself. The GOP KNOWS Kavanaugh Tried To Rape Someone … The FBI notifies the White House of the letter to see if they want follow-up. The White House declines further investigation. But now they know. And now they pass it on to GOP operatives. Early August. So now, Kavanaugh, the FBI, the White House AND GOP operatives all know. BEFORE the hearing even begins. So now the PR campaign goes into overdrive.

Read the entire thing as it explains a lot of the Republican fake anger at Senator Feinstein, which was all a gigantic smoke screen to disguise the fact that the Republican operatives were doing all they could to demean Dr. Ford, pump up Kavanaugh, and evade any real investigation. Senator Collins little More Likely Than Not sort of puts this in the domain of civil litigation rather than criminal charges where the standard is:

preponderance of the evidence – n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation about what the parties intended.

Suppose Dr. Ford chooses to file a civil lawsuit against Brett Kavanaugh and Mark Judge. What then? We would have actual discovery if this lawsuit is allowed. Then again I bet Kavanaugh would hire some slime ball lawyers to squash this lawsuit even if they had to take it to the Supreme Court where Justice Kavanaugh could file the fifth vote in favor of his own motion.

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Sour Grapes

As I write, Brett Kavanaugh is not yet a Supreme Court Justice. I assume he will be one soon. I am going to argue that this is the best of the bad possible outcomes.

Yes this is making the best of a bad situation and pathetic motivated reasoning. Yes Collins’s speech drove me into an almost insufferable panic and despair (don’t ask me ask, my soon to be ex-wife if I don’t get a hold of myself [by blogging]). Consider this post emergency marriage therapy (or my bothering you by my recognition of her 8th amendment rights).

First it is clear that a very large fraction of the US public believe that Kavanaugh is a criminal and think it is very wrong for him to serve on the Supreme Court. In polls this seems to be a plurality not an absolute majority.

Also, on Thursday, he demonstrated that he is a raging partisan who aims to use his robe to punish his political adversaries. I think this was already clear to anyone who paid attention, but it is now clear to many people who looked the other way. They include lifelong Republican Justice John Paul Stevens a retired justice who argued against confirmation of a new one. This is unprecedented. The ABA reopened their evaluation of Kavanaugh when it was too late to influence the Senate. I am pretty sure that is unprecedented too. 2,400 law professors signed a viral petition arguing against confirmation of someone who was likely to be incredibly powerful. I suspect this is unprecedented event 3.

This means that the perceived legitimacy of the Supreme Court is in great danger (as it was in 2000 and as it was when the Warren Court decided to take the Constitution seriously). I’d also say that Justice Kavanaugh will attract attention to the misdeeds (torts not crimes) undoubtably committed by Justice Thomas and his felonious denial of those facts under oath. He was never a legitimate Justice, and that will no longer be over looked.

5-4 decisions with Kavanaugh and Thomas in the majority will be perceived to be illigitimate by a very large fraction of the population (I guess eventually reaching a majority but maybe just a plurality). This is exactly what Chief Justice John Roberts fears most — and can prevent any time he wishes. 5-4 decisions with Kavanaugh in the minority will not destroy the perceived legitimacy of the Court or endanger the constitutional order. I hope Justice Roberts (who clearly votes based on the outcome he prefers and can rationalize anything) will act accordingly.

Also packing the court is a very extreme act which would definitely endanger the Republic. It was done — in the 1860s. The congress that changed the number of justices also impeached President Andrew Johnson and refused to seat representatives and senators elected in Confederate states. This followed the Civil War — after killing each other for 5 years Americans were prepared to change the number of justices if necessary.

It was threatened by F. Roosevelt leading to “a switch in time saves nine” a sudden shift from declaring the New Deal unconstitutional to accepting it, because the alternative was a packed court. I may have made a mistake above. I guess Roberts fears court packing even more than he fears perceived illigitimacy — the two are so closely linked it would be hard to tell even with ESP.

One point is that he can avoid both by voting with the Democrats.

Another is that desperate times call for desperate measures. Court packing is preferable to submission to an undemocratic oligarchy and armed revolution and the GOP may leave us only those three choices.

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Textualism and The Exegesis of the 1982 Georgetown Preparatory School Yearbook

My understanding is that Bret Kavanaugh presents himself as a textualist, following Antonin Scalia he argues that words in the constitition and laws should be interpreted using their conventional meanings when they were written. This is in contrast to the different approach based on considering legislative history (which is impossible for the main body of the Constitution because the procedings of the Convention were secret). It is in very marked contrast to the approach based on following precedent and deferring to the interpretation made by other judges in the past. This third “living constitution” approach makes statute law like common law mainly a body of precedents. Notably over here (in Rome) no one argues for the third approach. It is a truism that “giurisprudenza non è legge” (jurisprudence is not law I translate un-necessarily since English legal terms come from right here in Rome (unlike the English legal tradition)).

Although not a lawyer, I felt the need to present pretentious introduction so that I might address the question “have I boofed yet”. Don’t worry, I have absolutely no intention whatsoever to answer this question, but I hope you are not shocked to read my confession that, at an earlier period in my life, I have, in fact, farted.

Addressing the Senate Judiciary Committee eminent judge Bart Kavanaugh argued that the slang term “boofed” which he wrote on his page of the 1982 Georgetown Prep yearbook should be interpreted as meaning “farted”. I see that he has no respect for or loyalty too textualism.

First an actual textualist would consider context. The slang term appears in the printed passage (among the oldest surviving exemplars of Judge Kavanaugh’s opus) “Judge, have you boofed yet?” Judge Kavanaugh asserts that he was publicly asking a close friend if he had, as of then, at any time in his life, farted. The word “boofed” alone doesn’t clearly refer to something other than farting. The additional (highly ironic) proper name “Judge” and the words “have”, “you” and “yet” provide enough context to prove beyond reasonable doubt that Judge Kavanaugh is a perjurer, criminal, and felon.

But a textualist considers more than the context within the document undergoing learned exegesis. It is necessary to inquire as to how the word was used by contemporaries of the author. Kavanaugh must explore, and must ask the eminent Senators to explore, 35 year old discussions of anal sex by teenagers to be true to his stated principles.

Or he could just admit that when he was 17 he publicly asked a friend if that friend had fucked a butt yet.

An embarrassing youthful indiscretion is not a felony. But Kavanaugh chose to lie, because that’s what he does.

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A Weak Defense of Citizen United: Ownership v. Control

A Weak Defense of Citizen United: Ownership v. Control

Many thanks to Peter Dorman for highlighting Citizens United As Bad Corporate Law. I guess we had to endure this comment, which is a really weak rebuttal:

Corporate shareholders are most definitely owners; they alone have the authority to sell their shares or the company’s assets. Their rights are based not on contract law but statutory rules of franchise. They are guaranteed rights of assembly abd representation, and they cannot legally surrender those rights even if they elect Directors who vote to do so.

My first thought to this attempted rebuttal was the complaints of condominium owners in San Francisco. They may own the rights to what is effectively an apartment but they have to deal with management as they really do not own the land. And even the land owner does not have that much control in a city where regulations control land use. My second thought involved the minority shareholders of Yukos Oil during Yeltsin’s Russia, which I noted in this related post:

AB noted yesterday that some of Sinclair Broadcasting’s shareholders were upset the decision of management to aid the Bush-Cheney ’04 campaign with free air time for another smear of John Kerry. Their stock, which was around $10 a share in early August, is trading now for about $7.30 a share.

Now I get that the corporate governance rules in the U.S. are not as pathetic as they were during Yeltsin’s Russia but the idea that an individual shareholder has any real control of how a corporation is run is quite naïve. Peter asked this commenter if he had read the paper. Had he done so, he might have noticed footnote 34 on page 19, which included a seminal paper by Ronald Coase entitled “the Nature of the Firm”. This paper initiated an entire literature on what this recent paper calls the “nexus of contracts theory”. If our commenter has not read this literature, he should.

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Citizens United, Thoroughly Debunked

Citizens United, Thoroughly Debunked

I admit I haven’t paid too much attention to debates over Citizens United, since I regard the direction taken by regulation, control over who may contribute to political campaigns and how much they can put up, to be misguided.  I would like to see comprehensive control over how much money can be spent on behalf of candidates, period.  (I would also like to see a mandate that all such contributions be funneled through an intermediary, like a public political finance fund, that keeps the identities of donors hidden from recipients.)  While CU has been yet another blow to democracy, the demand that plutocrats use one vehicle to flood the system rather than another is second best.

That said, I was struck by this new critique of CU.  Its authors, Jonathan Macey and Leo Strine, base their analysis on a point I was familiar with in the context of economic debates over the Jensenian shareholder rights theory of the firm, but its application to CU is obvious once you think about it.  The article ranges over a number of topics, but here’s the core, taken from the abstract:

In this Article we show that Citizens United v. FEC, arguably the most important First Amendment case of the new millennium, is predicated on a fundamental misconception about the nature of the corporation. Specifically, Citizens United v. FEC, which prohibited the government from restricting independent expenditures for corporate communications, and held that corporations enjoy the same free speech rights to engage in political spending as human citizens, is grounded on the erroneous theory that corporations are “associations of citizens” rather than what they actually are: independent legal entities distinct from those who own their stock…..[C]orporations do not have owners, they have investors who have contract-based, financial interests in the firms and limited management rights.

The best ideas often seem obvious once they are put forward, but the trick is to see them in the first place.

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BRETT KAVANAUGH: A MULTIPLE TRAIN WRECK IN MANY DIMENSIONS

by Brad Delong (originally published at Grasping at Reality with at least Theree Hands)

BRETT KAVANAUGH: A MULTIPLE TRAIN WRECK IN MANY DIMENSIONS: MONDAY SMACKDOWN

Clowns (ICP)

I confess that I have been procrastinating on various things. Why? Because I have been unable to tear my eyes away from the multiple train crash that is the confirmation process… the career… the life of Brett Kavanaugh. My view of this is a third- or fourth-hand view. It is the view of Georgetown Prep from Sidwell Friends. And it may well be wrong. But I think that it is right. So, with that warning, here goes:

The first… oddity… is Brett Kavanaugh‘s reaction to Christine Blasey Ford. It really ought to have been something like this:

 

I cannot say that I have a good memory of this, and I am not certain I am remembering the incident that was clearly very traumatic for her. I was drunk. I think she was drunk. From my perspective, we were roughhousing, and I was hoping she would let me see her tits. When it became clear she clearly was scared, Mark and I backed off.

I was in an unhealthy liberal culture in my high school and college years. When I was young and irresponsible, I was young and irresponsible. I hope I have learned to be a better person since then. I am now trying hard to be my best possible self.

I was too much of a dork and a dick back then to call her up the following day to apologize. And I have not been my best self in shirking my duty to apologize to her, to repent, to atone. It maybe too late now— better late than never Is not always true. But if better late than never is true in this case, I would like to say: I do regret my actions at what I believe was that incident and at other incidents where I was young and irresponsible. But I am not a rapist. I do not like to force myself I’m scared, struggling women.

That would’ve been the same thing to do. The non-psychopathic thing to do. The normal thing to do. The Manly thing to do.

But Brett Kavanaugh and company did not do that. Why not?

I think the balance of the probabilities has to be that he was, more likely than not, poisoned by his upbringing, and perhaps especially by his upbringing in the right wing of the Catholic Church of Pope Paul VI and John Paul II—their moral imbecility in the age of artifical birth control is truly wondrous.

I think it is more likely than not that he did and perhaps does have a particular kink: enjoying destroying female agency, through intoxication and a little light restraint, perhaps especially when women find themselves of multiple minds, with hopes, fears, regrets, and anticipation. Perhaps especially when there are no hopes and anticipations but only fears and regrets.

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Hannity as Goebbels

Hannity as Goebbels

Joseph Goebbels famously said that if you want to convince a populace of A Big Lie (fake news), then you do it by repeating it, over and over and over again.  For a long  time I have been keeping an eye on Hannity, reportedly nightly conversing with Trump after his show.  What struck me some time ago how repetitive the core pats of his introductory monologue are.  I have increasingly noticed that pro-Trump people seem to believe pretty much all of this super-repeated core Hannity-Trump lies. And I have seen no systematic or regular effort to offset this Goebbelsian Big Lie repetition.  So, here I am going to make a small attempt to point out some of the worst lies Hannity Big Lies about.

Almost all of it has to do with Hillary Clinton, a “whataboutism,” argument; Trump may have done some questionable things, but whatabout Hillary and her emails and so much more?  After all, at Trump rallies they still chant “Lock her up,” although reportedly in West VA a few days ago there was less enthusiasm and a lot of empty chairs.

A caveat is that this is not some super defense of Hillary.  One more or less accurate bit in the usual Hannity rant is that Hillary and the DNC treated Bernie Sanders badly and unfairly.  But I simply note for now that Bernie himself totally supported her, even as we know some people who voted for him voted for Trump. And, of course, she should have spent more time in Wisconsin and MIchigan rather than such effluvia as Arizona and (gag) Utah.  She was not on top of things, although in the case of the third surprise swing state, Pennsylvania, that was where she was on the last night of the campaign in Philadelphia, trying to get the vote out.  She knew that one was crucial, and she lost it.

So now we must deal with crucial issues.

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Does The University of Illinois have a Problem

I’m not a lawyer. Also Republicans are worse than I imagine possible even taking into account the fact that they are worse than I imagine possible. However, I think Brett Kavanaugh defender Andrew Leipold of The U of Illinois School of Law is unfit to serve as a law professor.

The issue is that Kavanaugh signed the Starr report which argued that Clinton could be impeached for delaying his interview with special prosecutor Starr. Therefore, either Kavanaugh agrees that Trump should be impeached or he is a complete hypocrite and partisan hack (no prize for guessing which).

Leipold argues that people are not responsible for their signatures “I don’t think it’s a fair conclusion to draw that everyone’s name who appeared on the report agreed with everything written there,” Ah and what if it were an affidavit ?

Also “Our job was to emphasize the grounds for impeachment,” he added. “We’re not the decision maker; Congress is the decision maker.” I had the impression that a prosecutor’s job is to seek the truth and to attempt to make sure that justice is served. His saying that his job was to support a specifici conclusion is a a confession of prosecutorial misconduct.

Yet the University of Illinois pays him to teach students how to practice law.

I’m pretty sure tenure can’t be revoked for misconduct which preceeded the tenure decision. Telling the truth about how one is a hack is not moral turpitude. I don’t think there is anything to be done about the problem. But it is a problem.

On the other hand, judge Kavanaugh can certainly be asked whether he agrees that prosecutors are supposed to be biased against people they investigate, whether he knew of Leipold’s attitude at the time, and whether he tried to do anything to protect justice for Leipold.

I am hope that Kavanaugh can’t handle being under oath. He chose to lie the day his nomination was announced (saying no president nominating a justice had been more thorough than Trump). I think conservatives often have a problem in settings in which conservative and good are not treated as synonyms. Now he has been writing opinions for the DC circuit court and he has a Yale law degree, but I sure can hope.

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Financial Arson Report: This Time It’s Blatant

Don’t say I didn’t warn you (in particular, don’t say I didn’t warn you on September 25 2008). Naked CDS make financial arson profitable. It is also, probably, legal. It seems Blackstone made some money by threatening financial arson (arson meets grenmail).

WSJ (via Drum)

Blackstone offered Hovnanian a low-cost loan and persuaded the builder to miss a small interest payment in exchange, which would trigger payouts on $333 million in Blackstone’s credit-insurance contracts

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Take Back ICE

Take Back ICE

U.S. Immigration and Customs Enforcement (ICE) was established 15 years ago:

ICE was granted a unique combination of civil and criminal authorities to better protect national security and public safety in answer to the tragic events on 9/11. Leveraging those authorities, ICE has become a powerful and sophisticated federal law enforcement agency.

My link was for a 2013 discussion of its laudable achievements during its first ten years. As a resident of New York City, I appreciated ICE. On this muggy day, several protesters are calling for something dear to my heart – Keep Families Together:

Hundreds of marches took place across the United States on Saturday as thousands of people demanded the Trump administration reunite families separated at the U.S.-Mexico border. The protests, marching under the banner “Families Belong Together,” are hoping to push the Trump administration to reunite thousands of immigrant children separated from their families after crossing into the United States.

Let’s be clear – the Demagogue in Chief high jacked ICE to push his poisonous agenda with over 2000 children separated from their immigrant parents. Rather than blaming Trump, some of the left has called for abolishing ICE. What to play into the Demagogue’s hands!

“The Democrats are making a strong push to abolish ICE, one of the smartest, toughest and most spirited law enforcement groups of men and women that I have ever seen. I have watched ICE liberate towns from the grasp of MS-13 & clean out the toughest of situations. They are great!” Trump tweeted. In a follow-up tweet, Trump urged the men and women of ICE not to worry about the ongoing calls to abolish the department. “You are doing a fantastic job of keeping us safe by eradicating the worst criminal elements. So brave! The radical left Dems want you out. Next it will be all police. Zero chance, It will never happen!” he wrote.

I know this Demagogue routinely lies but ICE was doing a fantastic job a few years ago. But even ICE has limited resources which this Demagogue has diverted from their true purpose. As such Trump is not only abusing the rights of these families, he is also making us less safe. I would hope the leaders of ICE would speak up and strongly object to what the Demagogue in Chief has done with their agency but to date they seem to be intimated from doing what is right. I would hope that Congress would hold hearings into this abuse of ICE and diversion of scarce resources away from securing our safety but these hearings are not going to happen as long as Mitch McConnell and Paul Ryan are in charge. But for God’s sake – could we on the left stop losing our minds over the rightful anger at the Demagogue in Chief so we can put forth a coherent message that taking back ICE not only ends the abuse of these immigrant families but gets this agency back to securing us as opposing as to serving the sick agenda of the Demagogue in Chief?

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