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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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

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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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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

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Hannity as Goebbels

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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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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

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In his editorial “Say Hello to Your Boy. A Special Guy,” Josh Marshall at TPM had this to say:

“When I first read the Times story I wasn’t sure whether the younger Kennedy (Justin), whose title was Managing Director and Global Head of Real Estate Capital Markets, would have been someone to actually make loans to someone like Trump as opposed to overseeing more complex or synthetic efforts like mortgage backed securities and such. But it turns out he definitely was. The FT says Kennedy was ‘one of Mr. Trump’s most trusted associates over a 12-year spell at Deutsche.’ A review of Kennedy’s bio suggests those twelve years were 1997 through 2009 – key years for Trump.”

Other presidents and their staff have lobbied SCOTUS justices to see if retirement was being thought of by them. I do not recall any of the justice’s family having a business relationship with the president pre-presidency and perhaps others who are closer to the courts can offer up more information. “During Justin Kennedy’s tenure, Deutsche Bank became Trump’s most important lender, dispensing well over $1 billion in loans to him for the renovation and construction of skyscrapers in New York and Chicago at a time other mainstream banks were wary of doing business with him because of his troubled business history.”

The loans occurred when other banks felt Trump and his businesses were too much of a liability with his multiple bankruptcies. Deutsche Bank (holding company) was also one of several banks which was also placed under tighter scrutiny because of its past practices. Most recently, Deutsche Bank failed a Fed stress test.

Even though I disagree with some of his opinions, I would not call Justice Anthony Kennedy a fool. He is an intelligent man who has swung the court in the direction he wishes it to go with each of his votes. Given that, he also knows his retirement from SCOTUS will have an adverse impact upon the citizens of this nation which will result from the candidate Mr. Trump selects to replace him. Justice Kennedy simply does not care and his timing was intentional.

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