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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Anthony Kennedy will retire July 31. This gives Trump and Republican Senators a chance to nominate and confirm a fifth hard right justice. Already the Court has become extremely ideological and activist. Today it declared that Unions couldn’t require employers to pay the union a a fixed amount per worker, because that allegedly violated the first amendmenr rights of workers in unionized workplaces which disagree with the union leadership. This is Lochner v New York level right wing judicial activism

But it is nothing compared to what a court with Kennedy replaced by another justice similar to Gorsuch, Alito or Thomas. That court would almost certainly overturn Roe v Wade, probably declare affirmative action unconstitutional, and quite possibly reverse the gay marriage decision.

The vast majority of Democratic Senators who have spoken have said they won’t confirm a justice in this congress but will insist on a delay until senators elected November 2018 are seated. They note McConnell’s argument against considering Garland and quote, among other things, a tweet of his.

There are only 49 Democratic Senators. They need two Republicans (or one if McCain misses the vote). They also need Democrats up for re-election in red states to resist. Already Senator Donnelly of Indiana has begun to semi-break with Senate Democratic leadership. I’m sure the vast majority of Democrats will do what they can to block confirmation. It is possible that there will be two or three Republicans will agree. Sen Flake of Arizona already announced he is blocking judicial confirmations over tariffs and Cuba. A supreme court nomination is completely different, but Flake hates Trump and is not running for re-election. Sens Collins and Murkowski are pro-choice. The might block an anti-abortion nominee. Democratic victory is not likely but it is possible.

But this raises another issue. Yesterday it seemed much more likely than not that Republicans will have a majority in the next Senate. There are very few Republican seats up for election (the map is worse for the Democrats than any Senate map has been for any party in living memory). Republicans also always argue (often correctly) that recent events improve their political chances. In particular, they can count on conservatives (who might have sat out the election) voting against Roe V Wade.

This is relevant to strategy, because if Democratic Senators reduce their re-election chances by obstructing the confirmation, and then Republicans have a majority again, they will have paid a political cost for no gain.

On the other hand (I finally get to the point if any of this post) I think there are two important reasons that the crisis might help Democrats win the Senate. First, for decades there have been more single issue pro-life voters than single issue pro-choice voters, because Roe V Wade was there and seemed secure. Solid majorities support Roe v Wade. Now that it is clearly in great danger, it is likely that many pro Roe V Wage voters will vote on that issue alone so long as there is an open seat on the Supreme Court. Abortion is an issue in which a passionate minority has more political impact than a complacent majority. The pro Roe V Wade majority won’t be complacent anymore.

But I think there is another issue which might hurt Republicans even more. There is an absurd case in which red state attorneys general argue that the ACA is now unconstitutional after being modified by the Republican tax cut bill. The Trump Justice Department refuses to defend the ACA and says that protections for people with pre-existing conditions are now unconstitutional. This was already a huge gift to Democrats. Gigantic majorities support the protections. Voters are extremely focused on health care. On health care, they already trusted Democrats much more than Republicans. Lawyers say the plaintiffs’ arguments are nonsense, but it is very easy to argue that, since Trump agrees with the plaintiffs, he will will nominate a justice who will side with them. I would guess that Roberts would then save the ACA again, but I wouldn’t bet on it, and I don’t think voters concerned about pre-existing conditions would either.

It is possible to link the struggle over the Supreme Court to the struggle to protect people with pre-existing conditions. In fact, the Justice Department has undeniably linked the issues. This issue could determine control of the Senate, but it is more likely to be decisive if there is an open seat. Vote for the Democrat to protect people with pre-existing conditions from judges who legislate from the bench is a pretty strong argument (I almost typed “good slogan” but it is too long).

In particular, one of the most vulnerable Democratic Senators, Claire McCaskill (D-MO) is running against the state attorney general who is one of the crazy plaintiffs. She has already stressed this. Arguing that voters better not elect a Senator eager to confirm a justice who will delcare pre-existing condition protections unconstitutional strikes me as about the best campaign strategy I can remember.

So I think obstruction is the best way for Democrats to address both the vital issue of the supreme court and the important issue of the next Senate. It sure seems that the vast majority of Democratic Senators (who know and understand much more than I do) agree.

Update: Senator Schumer was 2 hours ahead of me (it’s his job).

Will Republicans & @realDonaldTrump nominate & vote for someone who will preserve protections for people w/ preexisting conditions, or will they support a justice who will put health insurance companies over patients, or put the federal government between a woman & her doctor?

— Chuck Schumer (@SenSchumer) June 27, 2018

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“I have rarely seen so much inconsistency and even hypocrisy from the Supreme Court as in its decision to uphold President Trump’s travel ban.”

On the Colorado SCOTUS Decision

A few weeks ago, the court found that members of the Colorado Civil Rights Commission had expressed impermissible hostility to religion because of relatively mild statements that every business in Colorado should serve all customers regardless of the owner’s religion, and that terrible things have been done in world history in the name of religion. By contrast, the court in upholding the travel ban essentially ignored repeated statements from Trump and his top advisors that he wanted to ban Muslims from coming to the United States.”
The president initially promulgated the travel ban by executive order on Jan. 27, 2017. It suspended immigration from seven countries for a period of 90 days and suspended the refugee program for a period of 120 days. It had an exception for those who were from minority religions in these countries. The seven countries shared three things in common: All were more than 90% Muslim, Trump had no economic investments in any of them, and none ever had been linked to terrorist activity in the United States.”

On the Travel Ban Scotus Decision

“Of even greater significance is the court’s contention that great judicial deference must be paid to the president in immigration policies, and that his actions will be upheld so long as they are supported by a conceivable legitimate purpose. With this premise, the court made irrelevant all the statements Trump and his advisors made about their desire for, as candidate Trump put it, a “total and complete shutdown of Muslims entering the United States.” The government’s claim that there is a national security justification for the ban is all that mattered. The dissenting justices in the travel ban case rightly analogize the majority’s ruling to the Supreme Court’s infamous decision in Korematsu vs. United States, which upheld the internment of Japanese Americans during World War II. Both policies were based on prejudice, not national security. In 1944, there was no evidence linking Japanese Americans to any threat to the country; there is now no evidence linking immigrants or visitors from the designated travel ban countries to terrorism. Although Roberts’ majority opinion repudiated Korematsu, the court ignored its crucial lesson.

Korematsu and now Trump vs. Hawaii represent the false assumption that danger to the nation can be determined by a person’s nationality or country of residence. In the United States, dangerousness should never be determined by race, ethnicity, national origin or country of residence. The Supreme Court ignored that fundamental American principle and created a precedent that gives the president vast powers to discriminate. It may be a victory for President Trump, but it is a huge loss for the Constitution and the rule of law.” Erwin Chemerinksy

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The ACLU’s Ría Tabacco Mar reviewed a recent SCOTUS decision in the NYT. South Dakota is being allowed to murder a man rather than commit him to a life time of hell in a natural life sentence . Charles Rhines was convicted of murdering a man while robbing a Dunkin Donut store he used to work at and was fired from a couple of weeks earlier.

The jury in deciding Charles Rhines fate in deliberation sent questions to the judge asking;

Would Rhines have a cellmate? Would he be allowed to “create a group of followers or admirers”? Would he be allowed to “have conjugal visits”? They apologized if any of the questions were “inappropriate,” but indicated that they were important to their decision-making.

The judge declined to answer, telling the jurors everything they needed to know was already in the jury instructions they’d received.

Eight hours of deliberation later and the jury sentenced Charles Rhines to death. It was not until 2016, when the newly appointed federal capital defenders found the jury note and restarted the appeals process and they interviewed the jurors learning what can be described as a preconceived bias of the jury towards Charles Rhines because he was gay.

One juror said Rhines was gay “and thought that he should not be able to spend his life with men in prison.” A second recalled another juror making a comment “sentencing Rhines to life in prison would be sending him where he wants to go.” A third said “there was lots of discussion of homosexuality” in the jury room. Another juror said, “There was a lot of expressed disgust. This is a farming community. There were a lot of folks who were like, Ew, I can’t believe that.” All of which is not pertinent to the sentencing. The jury sentenced Charles Rhines to death because he was gay and not because he murdered someone.

To provide for the integrity of the jury and what they discuss in deliberation in the jury room; there is what is known as the no-impeachment rule. It says testimony from jurors during jury deliberations may not be used to impeach a verdict during an appeal. In this case as one of Charles Rhines attorney’s Shawn Nolan argues, “the juror misconduct violated constitutional protections — so the rule should not apply.” The rule was overturned once before when considering racial prejudice in Peña-Rodriguez v. Colorado;

Miguel Angel Peña-Rodriguez was convicted of unlawful sexual conduct and harassment, two jurors came forward to tell his lawyer that another juror had made racially charged statements about Peña-Rodriguez and an alibi witness, commenting about the likelihood that Peña-Rodriguez was guilty and the witness was not credible because both were Hispanic. Peña-Rodriguez sought a new trial based on the jury misconduct, but the courts said no because of the no-impeachment rule. The U.S. Supreme Court disagreed. “A constitutional rule that racial bias in the justice system must be addressed — including, in some instances, after the verdict has been entered — is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right,” the court wrote. As such, the court concluded that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way” so that the court can consider whether the misconduct tainted the promise of a fair trial.

The Law is meant to punish “people for what they do and not who they are.”

Jurors Thought a Man Would Enjoy Prison, So They Sentenced Him to Death Jordan Smith, The Intercept, June 13, 2018

A Jury May Have Sentenced a Man to Death Because of What He Is And the Justices Don’t Care. Ría Tabacco Mar, NYT, Jume 19, 2018

author; run75441 @ Angry Bear Blog

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Healthcare Insurers Lose in Court Over Risk Corridor Funds

I have written a couple of times about Sessions, Upton, Kingston, and Republicans sabotaging the ACA Risk Corridor Program with the insertion of Section 227 in the CRomnibus Bill signed in December 2014. Not only did Senator Sessions, Representative Upton (MI), and Representative Kingston (CO) block the funding of the Risk Corridor Program; with the insertion of Section 227 by Representative Kington, they blocked any transfer of funding from other programs as well. A rehash of the results of Republican sabotage shows, it caused a rise in premiums for the unsubsidized (others were picked up), Coops to go bankrupt, and insurance companies to withdraw from the healthcare exchanges.

Today a Federal Appeals Court ruled; “the U.S. government does not owe health insurers $billions in unpaid risk-corridor funds meant to offset losses during the early years (3 years) of the Affordable Care Act exchanges.

More than three dozen insurers claimed the federal government owed them more than $8 billion in risk corridor payments. Ruling 2-1 the COA determined the payments were not necessary since Congress deemed the program had to be budget neutral after the legislation was passed.”

In other words, the court decided a different Congress and/or the administration made up of different political interests can change the intent of another Congress or Administration.

A similar Risk Corridor Program exists in the Medicare Part D program for drugs which has no life time limit and was put in place by Republicans and Bush to cover any risk which may occur from getting too many higher cost insured.

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