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How I answered a survey from the Progressive Change Campaign Committee about the Merrick Garland nomination

I received an email this morning from the Progressive Change Campaign Committee, boldprogressives.org, asking that I complete a survey on the Garland nomination.  The email began with this question: What do you think about Merrick Garland and the Supreme Court vacancy now?  It continued:

The president nominated Merrick Garland to fill the vacancy on the Supreme Court.

After a day of media reporting on his record, and Senate Democrats calling for the process to move forward, we want to know how you feel about this fight.

Your answers below will help shape the PCCC’s activism on this.

Here are the survey questions and my answers:

QUESTION: Overall, how do you feel about President Obama’s decision to nominate Merrick Garland?

1) Very Enthusiastic   Somewhat Enthusiastic   2) Pretty underwhelmed   3) I do not like this decision   4) I don’t know

ANSWER: I do not like this decision

 

QUESTION: How enthusiastic are you to keep taking action against Senate Republicans to allow a hearing and fair process to move forward for Merrick Garland?

1) Very psyched. Ready to fight those Republicans!   2) Somewhat enthused. But we all need to take some action.   3) I still need to learn more before taking any action.   4) I’m not feeling it at all.

ANSWER: I still need to learn more before taking any action.

QUESTION: Wednesday, the PCCC launched a new petition saying this:

Petition: Now that the President followed the Constitution and nominated a Supreme Court Justice, Senate Republicans should do their job and allow a fair hearing and process to move forward. The Court needs someone who understands the real world impact of the Court’s decisions on hardworking Americans. 

Should we add your name to this petition?

1) Yes, add me as a signer.   2) No, do not add me as a signer.

ANSWER: No, do not add me as a signer.

QUESTION:  What do you like most about Merrick Garland being the nominee?

ANSWER: That he once dissented in a case in which his two panel colleagues (one of them John Roberts) ruled against a whistleblower and the federal government (who were on the same side in the case). Although the narrow issue was whether or not the False Claims Act applies to Amtrak contractors, Garland’s dissent did indicate strong support for the role of whistleblowers.  He dissented similarly in a free-press case involving disclosure of the names of whistleblowers (in a case in which the criminal defendant requesting the disclosure was actually a sympathetic figure and was innocent).

QUESTION: What do you like least about Merrick Garland being the nominee?

That his near-religious belief in the sanctity of precedent may mean that the precedents set by the Conservative Legal Movement justices, including those that overturned earlier precedents will remain law until one of the four conservative justices is replaced by a Dem president.  In other words, that the panoply of dramatic changes in the law amounting to a Conservative Legal Movement checklist with, by now, lots of checks indicating completion—Sherman’s-march-through-Georgia- style—will remain law for at least the next several years.  Citizens United and the Voting Rights Act opinions are just two examples.

QUESTION: What do you most still want to learn about Merrick Garland?

ANSWER: Because he is a judge on the D.C. Circuit rather than on one of the other regional circuit courts, he has never ruled in a habeas-petition case challenging the constitutionality of a state-court criminal conviction, and therefore on the threshold issue of federal-court jurisdiction in such cases. In other words: on the right of state courts to violate the constitutional rights of individuals.  I also would like to know how broadly he views the Supreme Court-fabricated “qualified immunity” of police officers and prosecutors who are sued for, say, withholding exculpatory evidence or just plain fabricating evidence.

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GAG. (And Paul Krugman is just so, so mystified that so many progressives support Sanders. Be mystified no longer, dear professor.)

Dan Crawford gave me the news this morning before I’d already learned of it. He emailed me with the subject title: “Merrick Garland…here we go!” He linked, without comment, to the NYT article on the announcement.

I responded:

UGH. I guess the idea is that there just aren’t enough super-establishment Supreme Court justices already. We definitely need one more.

And Krugman is just so, so mystified that so many progressives support Sanders.

I WANT TO SCREAM.

Beverly

I’ll post at more length later today; I don’t have time right now.  But at the risk of drawing attention to the attention of the Secret Service, in an unpleasant way, I will take the time right now to say to Obama: Drop dead.*

And I’ll take the time to note this: The title of the NYT article is “Obama Chooses Merrick Garland for the Supreme Court.”  Its subtitle? “Appeals Court Judge Is Respected by G.O.P.”  Well, the G.O.P. that the Washington in-crowd hasn’t noticed isn’t all that popular right now with, um, some of the G.O.P.

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*Na-na-no; this is said facetiouslyThe  drop-dead part, that is. Please, Secret Service. Really.  I don’t like Joe Biden all that much, either.

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UPDATE:  This blog post in Slate by someone named Michael Gerhardt, whom I’d never heard of before and who is not identified there by anything other than his name, makes me cringe.

This guy’s bottom line: Yup, can’t be a merit nominee to the Supreme Court unless you’ve been an intrinsic part of the Centrist Establishment in Washington for, say, several decades.

And interestingly narrow definition of merit, wouldn’t you say?

Okay, well, actually he is identified by more than his name.  He’s a Centrist Establishment person.  Just an educated guess, but still ….

Fittingly, the post title is, “Merrick Garland deserves to be on the Supreme Court.”  Because what matters is what Merrick Garland deserves, not what the multitude millions of people whom the Supreme Court pretends don’t exist.  Or just aren’t worth the time of such an august group.  Or even a moment’s thought.

Then again, there is this hopeful note, also from Slate.  It’s by Jim Newell, Slate’s main political analyst.

Added 3/16 at 6:32 p.m.

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UPDATE TO UPDATE:  Calmer now.  Reread Jim Newell’s awesome article and agree with every word of it.  Including why Obama almost nominated Garland to fill John Paul Stevens’ seat for real. Which pretty much sums up why I can’t stand Obama and don’t want a third Obama term in the person of a chameleon.

Added 3/16 at 7:10 p.m.

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PS: Greg Sargent writes:

I’ll bet that a big part of his selection was that Garland was willing to go through the process knowing he probably won’t get to actually serve on the court, while a younger judge who could have another chance later might not want to.

In thinking about it more, I’m betting that that was a very big part.  As in, none of the others would accept the nomination, and told Obama so.

Repubs apparently now think they can have the last laugh.  Senate Repubs reportedly now are considering whether to confirm during the lame duck session after the election if Clinton wins.  But of course, then Garland would be expected to withdraw if Obama does not withdraw his name saying that Clinton and the new (Democratic-controlled) Senate should handle it.

This post is starting to feel not like a blog post but like a blog.

Added 3/16 at 8:36 p.m.

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PS TO PS:  Yup.  It’s been officially confirmed by go-to-Centrist Ruth Marcus: Garland resoundingly (her word) deserves to be confirmed, and what really matters is what Garland deserves.

Her piece is titled “A Supreme Court nominee too good for the GOP to ignore.”  I’m not kidding.  That’s its title.  You really have to read this thing.  The whole thing; you don’t want to miss the part about her running into him on the street after she became a well-known Washington Post journalist.  Her piece apparently is not intended as a parody of a Washington insider’s view, although it does double duty as that.

Yup. This post is a blog unto itself.

Added 3/16 at 9:02 p.m.

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John Cornyn Adopts Trump-Like Fascism Techniques. Good Job, Donald! [Updated.]

Dan Crawford sent me links to these two articles about Senate Judiciary Committee enforcer John Cornyn’s threat on Tuesday that he and his compadres will destroy the reputation of anyone nominated by Obama for Scalia’s seat.  I responded to him after reading the articles:

You know, Dan, this is so palpably, stunningly offensive that Sanders and Clinton need to tell the public about it.  It’s really just jaw-dropping. It’s just … I don’t know; I can’t even think of a perfect adjective.  Scary, maybe?

Beverly

Sanders, especially, should mention this on the campaign trail as a way to illustrate the lengths that the people who want the federal courts—most prominently but by no means only, the Supreme Court—to continue to serve as a fully owned subsidiary of Koch Industries and the legal arm of the Republican Party, albeit with the full force of the United States government’s powers.

Cornyn is a former Texas state supreme court justice and Texas attorney general.  I’m betting that his professional history isn’t pretty, so he’s perfect to have his Fascism routine turned back on him. As in, turnabout is fair play.  Exposing his record as a state supreme court justice and a state attorney general to national examination may, given what some of the specifics are likely to be, ensure his seat as a Texas senator for as long as he wants it.  But it also may well help in making the remainder of his tenure as a senator, beginning next January, be as a member of the Senate minority.

And I don’t mean that I expect him to become a Democrat.

Thug-like threats and actions aren’t likely to appeal to a majority of voters.  As Trump’s general-election and favorability poll numbers indicate.

In other words: Citizens united against Citizens United!  And so very much more.  Hoist this politician by his own piñata.

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UPDATE: The New York Times today has an editorial on this, writing:

On Monday, John Cornyn, the senior Republican senator from Texas, warned President Obama that if he dares to name a successor to Justice Antonin Scalia of the Supreme Court, the nominee “will bear some resemblance to a piñata.”

Violent imagery has been commonplace in political statements for a long time, but even so, it is disgraceful for a senator to play the thug, threatening harm to someone simply for appearing before Congress to answer questions about professional accomplishments and constitutional philosophy

The editorial is titled “Republican Threats and the Supreme Court”.

Senator, may we not drop this? … Senator. You’ve done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?

Added 3/11 at 8:42 a.m

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I finally agree with (much of) a Krugman criticism of the Sanders campaign. (And why I’m glad he made the criticism in the way he did.) [Clarification added 2/20 at 11:05 a.m.; update added 2/21 at 9:40 a.m.]

Bernie Sanders hates the Supreme Court’s decision in Citizens United v. FEC, which held that corporations have a First Amendment right to spend unlimited sums advocating for their preferred candidate. Who doesn’t? Citizens United was a deeply misguided decision that vastly underestimated the state’s compelling interest in preventing the appearance of corruption that massive corporate electioneering inevitably creates. An overwhelming supermajority of Americans despise the decision and wish to see it overturned. That includes most Democrats—which is probably why Sanders recently tweeted a guarantee that his Supreme Court nominees “will make overturning Citizens United one of their first decisions.”

Bernie Sanders Has No Idea How the Supreme Court Works, Mark Joseph Stern, Slate, Jan. 22

Okay. As an obsessive Bernie Sanders supporter, and as someone who knows that Supreme Court justices cannot make overturning Citizens United one of their first decisions simply because they want to, I cringed.  To understate it.  There are certain prerequisites to overturning Citizens United: specifically, an existing state or federal campaign-finance law that conflicts with the holding in Citizens United, and a legal challenge to the statute’s constitutionality that has been decided by a federal trial court and then by a federal appeals court, and then then a filed “cert.” petition asking the Supreme Court to agree to hear the case.

Granted, something not all that different than what that tweet proposed did happen in none other than Citizens United, but at least there was an actual statute in existence—McCain-Feingold—which they could, and most of which they did, pronounce unconstitutional.*  (In a follow-up case, they pronounced most of the rest of it unconstitutional.)

But I also knew that Bernie Sanders himself knows this, and that he was not the one who published that tweet.  Some 20-something member of his communications staff did.  I gritted my teeth and said to myself something like: “Okay, Sanders’ campaign manager, Jeff Weaver, has a law degree from Georgetown.  Sanders should order that no tweets or other communications on technical legal issues—or on legal-related things that involve legal technicalities, even his 20-something communications staff doesn’t recognize that it does–ever again be published without approval from Weaver.  Or someone else who has some actual knowledge of actual legal procedure and such.

There are, in other words, certain subjects that plainly require expertise—sometimes extensive expertise—before a statement about them is made. Supreme Court jurisdiction is one of them.  And obviously, macroeconomics is another.

Okay, well, by now y’all know about the controversy concerning a report by UMass-Amherst economist Gerald Friedman, commissioned by the Sanders campaign, that apparently is so of a mirror image of the macroeconomic claims of Arthur Laffer to Ronald Reagan, and Ronald Reagan, George W. Bush, Mitt Romney, Jeb! Bush, Marco Rubio, Ted Cruz, etc., to the public.  In this case the claim is that Sanders’ economic-policy proposals will produce something along the lines of 5.3% annual GDP growth, an unemployment rate of less than 4%, and a significant increase in the labor-participation rate (notwithstanding the aging of this country’s population).  You’ve read Krugman’s blog posts about it and you’ve read his column today. Or many one of the other excoriating commentaries about it as well.  Or maybe Krugman’s and some others’.

The growth and unemployment rates apparently are theoretically possible, so it is not quite the mirror image of Laffer economics.  But also apparently, historically it is extremely unlikely.

No one has ever accused me of being an economist, man, but I’ve read enough Paul Krugman blog posts and columns, and AB posts, over the years—including Krugman’s repeated mockery of Jeb!’s promise of 4% GDP growth annually within the last year—for Friedman’s conclusions to raise series questions of accuracy, even to this novice.  Yet Sanders’ campaign began trumpeting the report.

This creates three huge problems, perhaps the most important of which Krugman flags: that if Democrats start pushing voodoo economic theories, they give away a fundamental part of their raison d’être.  The Republicans push voodoo (or highly implausible) economic theories; the Democrats do not.

I’ve argued that a big, big reason why I think Sanders would be a stronger general-election candidate than Clinton is that there is so very much that the Dem candidate should argue against, say, Rubio or Bush or Cruz that would as a practical matter be unavailable to Hillary Clinton to actually argue, but that are at the very center of Sanders’ campaign and Sanders’ appeal. And now suddenly, there is this wrench that’s been thrown into this.

Another huge problem is how extremely easy it is to conflate this issue with the incessant claims—by Clinton, by Krugman, by the Washington Post editorial board, by the Washington Post centrist-left and centrist-right columnists, etc., etc.—that Sanders’ high-profile substantive policy proposals (e.g., Medicare-for-all; tuition-free public colleges and universities) are financially unworkable. These are entirely distinct issues.  Yet just the headlines on some of these stories, which is all that many people will read, makes this conflation very easy.  Some mainstream-media political journalists (inexplicably) are doing it in their articles or blog posts about it.

But counterintuitively, I think Krugman’s column, which identifies and explains the actual issue, will help make clear the distinction.

And then there is this: If Sanders does, as I dearly hope, become the next president, his administration’s economic success will be judged against this.  A 3.5% annual growth in GDP, for example, will be called a broken promise.

But I disagree with Krugman’s political assessment that this indicates that the Sanders campaign and maybe the candidate himself are not ready for primetime.

If not nipped in the bud—repudiated very soon by Sanders himself—his campaign success could begin unraveling; that is true enough.  But every modern presidential campaign makes mistakes, some of them major ones, and the Sanders campaign, unlike the Clinton campaign, is not well stocked with presidential-campaign veterans.  Weaver himself is a novice.

And Sanders and Weaver are navigating a 20-ring circus right now, with several campaign appearances of one sort or another every single day. They both must be exhausted.

What Sanders needs to do—seriously needs to do—is to determine the types of published things ostensibly by Sanders himself (tweets, for example) and by his communications staff are fine for them to publish on their own, and the types of things that are not. Law things, not. Macroeconomics things, not.

For law things, there needs to be a designated person with actual knowledge of law things.  For macroeconomic things, there needs to more than one.  Nothing—nothing—should be published about macroeconomics without prior review by more than one macroeconomist.

I absolutely get the Sanders campaign’s frustration with the incessant torrent of uses of the word “SOCIALIST” to misrepresent Sanders’ actual policy positions.  I share the frustration.  But the way to handle it is to do what Sanders had been doing: Pointing out the capitalist, entrepreneurial success of countries such a Canada, Denmark, Sweden, Germany and … Australia (which has universal healthcare coverage!).

And pointing out that this country’s most entrepreneurial period was the post-WWII period, with tax rates higher than anything Sanders is proposing. A period of organized-labor strength.  Of Glass-Steagall separation of traditional banking and investment banking.  And of aggressive enforcement of antitrust laws and securities laws. And, in 1967, the start of Medicare.

An addition to this torrent came earlier this week from another high-profile Friedman, New York Times columnist and aggressive-centrist Thomas Friedman, who wrote:

Bernie Sanders shows zero interest in entrepreneurship and says the Wall Street banks that provide capital to risk-takers are involved in “fraud.” …

I’d take Sanders more seriously if he would stop bleating about breaking up the big banks and instead breathed life into what really matters for jobs: nurturing more entrepreneurs and starter-uppers. I never hear Sanders talk about where employees come from. They come from employers — risk-takers, people ready to take a second mortgage to start a business. If you want more employees, you need more employers, not just government stimulus.

Apparently he’s been reading too many Washington Post centrist-right and centrist-left columnist columns.  Or else he concluded on his own that such things as breaking up the big banks, or for that matter government stimulus, has nothing at all to do with what really matters for jobs: nurturing more entrepreneurs and starter-uppers.

He is, though, certainly right that these days, if you want more employees, you need more employers.  The large, current employers plow most of their profits into stock dividends and stock buybacks, not into hiring more employees and not into upgrades of such things as manufacturing plants.  The ones here in the States, anyway.

But about the risk-takers whom I’m betting he really has in mind—his wife’s father and uncle, who during the postwar period began one of the first shopping-mall development companies and grew it into the very largest, turning their relatively small family collectively into multibillionaires before the collapse of the shopping-mall real estate business because of online shopping (the family still is extremely wealthy, but not nearly to the extent that it was).

Sanders is in fact the most pro-entrepreneurial of the presidential candidates in either party. He combines Theodore Roosevelt’s antitrust vigor with Franklin Roosevelt’s New Deal regulation of the financial services and securities industries, and FDR’s and Dwight Eisenhower’s massive building programs, mainly in major infrastructure projects.

What the centrist crowd doesn’t understand, or pretends not to, is that just as in Teddy Roosevelt’s day, there are critical conflicts between the interests of entrepreneurs (current and would-be) and ongoing small-businesses, on the one hand, and large corporations (especially certain types of large corporations), on the other.  One of my favorite examples is what is known as the Durbin Amendment, which pitted the interests of Visa and Mastercard against small retail businesses.  The Democratic Congress pushed it through. The nature of the charges at issue made it especially difficult for small retailers to compete with large ones. Walmart lost on that one; Mom and Pop won.

As for business loans and home mortgages, Friedman, who neither has a home mortgage nor a small business, may not be aware that the very size of the megabanks makes it ever harder for small local banks of the type that surely funded his in-laws’ startup in Marshall, Iowa back in the ‘50s, to remain in business.  The megabanks, like Walmart, set market prices. And pretty much everything else.

And the collapse of antitrust enforcement has had an enormous effect not merely on direct competition but also on small manufactures in the supply chain of large ones.  The fewer the buyers of the type of part manufactured by the small manufacturer, the less bargaining power the small manufacturer has in order simply to stay in business.

Sanders and his campaign need to bring the conversation back to where it was before this Gerald Friedman debacle.

And I need to end this very long post.

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*Sentence edited slightly for clarity and precision. 2/19 at 8:57 p.m.

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CLARIFICATION: Reader EMichael and I exchanged these comments this morning in the Comments thread:

EMichael

February 20, 2016 9:25 am

Bev,

It is the unforced errors of the Sanders’ campaign that scares me. Perhaps it is simply, as you state, that there are not enough knowledgeable people working for the campaign and that those who are capable are simply exhausted. Kind of scary when there are still nine months before the election. If Sanders wins the nomination, how can the campaign pick up capable people to stop these kind of errors?

 

Me

February 20, 2016 10:08 am

EMichael, every major presidential campaign makes unforced errors, and the Sanders campaign is chock full of competent people. Clinton’s campaign has made a slew of them.

It’s just that there are some policy areas that require some real expertise in before a statement that has the potential to get a key thing wrong (e.g., the Citizens United tweet) or that requires expertise to evaluate (e.g., macroeconomics projections).

I plan to post a follow-up to this post clarifying some things and making the point that it now appears that Krugman way overblew what the Sanders campaign actually did, which was that its policy director mentioned the Friedman study and praised it as outstanding work. That was all.

But this key point I was trying to make is still valid: that while it is necessary for the Sanders campaign to refute the Sanders-will-kill-entrepreneurship-in-this-country-and-destroy-the-banking-system-and-kill-all-the-apple-trees-in-order-to-keep-Americans-from-making-apple-pie slurs, he should keep the focus of his campaign on his policy proposals and their benefits for their own sake. This macroeconomics controversy has been a big distraction, and–as I said in the post–is one that is far too easy for my comfort to conflate with the issue of the cost of his policy proposals.

The link I included in my comment is to an article on Salon by Elias Isquith, detailing what prompted the controversy and rebutting Krugman’s political argument.

Several other readers in the Comments thread supplied important links, among them: to James Galbraith’s two-page letter to Krueger, Goolsbee, Romer and Tyson deconstructing their high-profile letter that has played such a large role in the controversy; and to an article by David Dayen in the New Republic rebutting Krugman’s political argument.

On second thought I think I’ll just let this Clarification suffice rather than post a separate follow-up post.  I’m tired of this subject.

Added 2/10 at 11:05 a.m.

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UPDATE: An exchange between reader Urban Legend and me in the Comments thread this morning:

Urban Legend

February 21, 2016 2:49 am

I am strongly pro-Clinton in the primaries, but Galbraith’s letter seems absolutely unassailable. Nothing justified this assault by Krugman and the others except their feeling that their credibility is undermined because of their giggling at the Bush et al projections. Somehow, the difference between massive stimulus and increasing regressive tax policies — differences they themselves have emphasized for years — escaped them.

 

Me

February 21, 2016 9:29 am

Urban, that struck me, too, when I read the Galbraith article: Somehow, the difference between massive stimulus and increasing regressive tax policies — differences they themselves have emphasized for years — escaped them.

There is still the (I would think) obvious problem that apparently Friedman didn’t take into account: the ageing of this country’s population in considering projected increase in labor participation. And there probably are other things that he didn’t consider that should have been considered.

And the main point of my point–or at least the intended main point–holds and is important: on subjects that require some technical expertise or special knowledge, it is really important that Sanders have someone with the expertise or special knowledge screen what his campaign is about to say about it.

But Krugman and the others themselves mislead in this.

This is it for me on this subject.

Added 2/21 at 9:40 a.m.

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Biden Tips Obama’s Hand On the Choice for the Supreme Court Nomination. (I’m not unhappy about the selection.)

Obama’s choice to replace Scalia, it appears from Biden’s comments this morning, will be Jane Kelly, whom Obama appointed to the Eighth Circuit Court of Appeals, based in St. Louis, in 2013.

Josh Lederman of the Associated Press reports:

WASHINGTON (AP) — President Barack Obama is looking to nominate a Supreme Court candidate who has enjoyed past Republican support, Vice President Joe Biden said, offering some of the first indications of the president’s criteria in replacing the late Justice Antonin Scalia. …

“In order to get this done, the president is not going to be able to go out — nor would it be his instinct, anyway — to pick the most liberal jurist in the nation and put them on the court,” the vice president told Minnesota Public Radio. “There are plenty of judges (who) are on high courts already who have had unanimous support of the Republicans.”

President Barack Obama is looking to nominate a Supreme Court candidate who has enjoyed past Republican support, Vice President Joe Biden said, offering some of the first indications of the president’s criteria in replacing the late Justice Antonin Scalia. …

Although the White House hasn’t publicly disclosed any candidates Obama is considering, he’s expected to look closely at a number of circuit court judges — including some that meet the benchmark that Biden laid out. Sri Srinivasan, who sits on the U.S. Court of Appeals for the District of Columbia Circuit, was confirmed 97-0 less than three years ago by the Senate, which also unanimously confirmed Jane Kelly in 2013 to the St. Louis-based Eighth Circuit.

Minnesota is part of the Eighth Circuit. And Kelly, who was an assistant Federal Public Defender in the Northern District of Iowa for 19 years before her appointment to the Eighth Circuit, all but the first five years as the Supervising Attorney in the Cedar Rapids, IA office, notably—it is noted each time her name is mentioned as a possible nominee—received the strong support of Charles Grassley, then the ranking Republican of the Senate Judiciary Committee and not its chairman.

Biden’s choice of local radio station for that interview may be coincidence.  Or it may not be.

Kelly joined the Federal Defender’s Office after completing clerkships for a federal trial judge in South Dakota and an Eighth Circuit judge.  She apparently has never been in private law practice, and also has never worked in government other than in those positions, and never represented a government as an attorney; as an assistant Federal Defender, she opposed the federal government in criminal cases.

Obviously, Obama reads Angry Bear.

No, Kelly was not on my three-person list of preferred nominees.  But all three of my preferences are men, and because Kelly would be replacing a man, that will free President Sanders to nominate one of them to replace Ruth Bader Ginsburg.  Who is a woman.  (It would free a President Hillary Clinton to that, too, but as a practical matter they all will be out of the running unless one of them gets a sex-change operation, and really soon. Ginsburg in 83 years old.)

Luckily, she was a classmate of Obama’s at Harvard Law School. Which may be why he nominated her in 2013 to a federal appeals court, or to any court, even though she was a career public defender.  Rather than a former prosecutor.

I do have a couple of caveats about her, though.  One is that although she’s had reams of experience representing the hoi polloi in criminal cases, especially of course in drug cases, all of her experience is in federal court.  Most criminal cases are state-court prosecutions, and this is where there is rampant misconduct and framing, by police officers, prosecutors, and prosecutors’ so-called-expert witnesses.  And courtesy of a 1996 federal statute that came close to precluding federal habeas corpus review of state-court convictions—and the O’Connor/Kennedy/Thomas/Alito/Scalia/Roberts crowd’s virulently angry and inappropriately aggressive actions—the Supreme Court’s effective rewriting of that statute to make it fully, completely, totally preclude federal habeas review of state-court convictions, state judicial branches and anything that occurs in them are constitutional-rights-free zones to the extent that they want to be.

This although the Constitution’s Article I provides that “[t]he privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”  For people convicted in state courts, Congress suspended that right two decades ago, at least according to the Supreme Court.  That’s a very long suspension.

So I would prefer someone who has represented criminal defendants in state courts, even though I don’t doubt at all that Jane Kelly well understands this issue.

The other caveat concerns something I’ve noticed over the course of more than a decade: The near-impossibility of obtaining meaningful appellate review in state court or in a habeas petition by female judges if the conviction occurred in a sexual assault case, although there is now a generational divide on this.  Kelly was born in 1964, and is on the young side of that female-judge generational divide.  And there now have been enough high-profile cases in which the allegation was fabricated that perhaps even some of the sisterhood judges have taken note, although I doubt it. This is simply an observation that among older female judges there is an unshakeable, irrebutable presumption of guilt that precludes genuine appellate or habeas review.

Finally, the Wikipedia entry for Kelly includes this: “In 2004, Kelly was attacked while jogging in a park in Cedar Rapids, and was brutally beaten and left barely conscious; her assailant was never identified.”

Yet Kelly did not walk away from her career as an assistant Federal Defender.

From what I know about her, which is almost entirely from Wikipedia and the short blurbs about her in media lists of potential nominees since Saturday, I will be happy if she is the nominee.

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A Question For Democratic Senate Judiciary Committee Members to Ask Sri Srinivasan If Obama Nominates Him to Fill Scalia’s Seat

In private practice, prior to his appointment to the appeals court, Srinivasan successfully represented former Enron Corp CEO Jeff Skilling in a Supreme Court case. The Supreme Court narrowed the reach of the so-called honest services fraud law, invalidating one theory used by prosecutors for Skilling’s conspiracy conviction and ordering further appeals court review. Despite the high court ruling, Skilling’s conviction was later upheld by an appeals court.

Srinivasan also represented Exxon Mobil Corp in a lawsuit alleging human rights abuses in Indonesia, and mining giant Rio Tinto in a similar case about its activities in Papua New Guinea. Both cases concerned in part whether a law called the Alien Tort Statute allows such cases to be heard in U.S. courts. The Exxon case is still ongoing. The Rio Tinto lawsuit was dismissed.

Judge who could replace Scalia worked on controversial cases for business, Jonathan Hurley, Reuters, today

There are, of course, some questions about the Exxon Mobil cases that he should and probably will be asked, by Democratic members of the Judiciary Committee if Obama does nominate him, as the betting folks in Washington expect.

Far less controversial, in my opinion, is his representation of Jeffrey Skilling.  The federal honest-services fraud statute, which the Court held, at Srinivasan’s urging as a partner in the Supreme Court Practice group at the Washington, DC office of mega-legal-powerhouse Los Angeles-based O’Melveny & Myers, was too vague to comport with constitutional dictates of due process of law.

But what is controversial, in my opinion, is how it happened that this particular criminal defendant managed to garner the attention and support of at least four justices (the minimum needed for the court to grant a petition to hear a case), in a case that challenged a criminal statute as unconstitutionally vague.

The Supreme Court has a preset number of cases it will hear each year (a fact that itself is ridiculous and inappropriate).  I believe the number is about 70.  Almost all of the cases that fill those spots—court term after court term after court term—are heard at the behest of lawyers who fall into one of three categories: attorneys representing law enforcement, usually the state’s attorney asking the Court to reverse a lower federal appellate court’s grant of a petition for writ of habeas corpus on behalf of a convicted state-court criminal defendant, but also “cert.” petitions asking the Court to reverse a monetary judgment against a law enforcement officer in a civil rights lawsuit; a lawyer from one of the rightwing self-styled legal foundations around the country serving as pro bono counsel in a culture-wars and Koch-brothers-wish-list cases (think: affirmative action, attempts to nullify the Voting Rights Act, attempts (currently, at the Court) to profoundly restructure legislative reapportionment; you get the picture); and a member of so-called Supreme Court specialist bar, whose actual specialty is putting the lawyer’s name, law firm and Washington, DC. Office address on the cert. petition, for a fee that only corporations, lobbying groups and individuals of the Jeffrey Skilling personal-wealth set, have access to.

Pretty much no one else need apply, although roughly 9,000 others each year do. Many of them to the tune of about $7,000, the de facto application fee, the typical cost for the 40+ copies of the cert. petition and appendices, printed by one of three printing companies that exist because they print these things with the (very) nonstandard sizing and binding-into-a-cute-little-booklet precision that the Court’s rules mandate.  A high cost for the privilege in participating in a charade.  A steep admission fee, deliberately so; there is no conceivable justification for it, given today’s modern technology for printing, electronically transmitting, and e-reading.

I mean, y’know, no legitimate justification for it.

In recent years, the Court has, in my opinion appropriately, agreed to hear a number of cases that challenge on vagueness grounds the constitutionality of criminal statutes.  But they are always federal statutes rather than state ones, and almost always are heard at the behest of someone whose cause correlates with a Republican interest, of the culture-wars variety or of the corporate-folks variety.

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Okay, let’s have a show of hands here: How many of you progressives want Obama to nominate a moderate to take Scalia’s seat? Because the Supreme Court should always be comprised only of arch-conservatives and a few moderates. How many want a former prosecutor, on the theory that the federal bench does not already have enough former prosecutors, and because the Supreme Court is just toooo pro-non-white-collar criminal defendant and tooo favorable to civil rights plaintiffs involved in the criminal-justice system?

Or how about another former Washington corporate mega-law-firm partner?  Like John Roberts?! Only moderate.  I mean, but what if he or she is an Asian?  And would be the first Asian on the Court?!  Or a woman?  Or, and a woman?

Or what if she’s a woman whose husband is a military reservist?!  Or is a black former prosecutor, no gender preferred?  Or has political experience?!  (These are all actual shortlisters.)

Oh, stop.  Just stop.  Please.  Really.

The list of shortlists published since Scalia’s death was announced about 24 hours ago is long, as are some of the lists.  And two or three of those on the lists are actual progressives.  But the overwhelming majority are not.  These assembly line lists do reflect what are considered the political realities, and Obama is widely viewed by non-Republicans as a political-realities type of guy.

Including by me.  And by Hillary Clinton.  And by Bernie Sanders.

But one of us three believes that there is a special place in hell for Democratic politicians who criticize President Obama as insufficiently progressive.  A place assigned by African-American voters, at least in the South, and especially in South Carolina.  The other two of us beg to differ.

Had Justice Scalia’s death occurred a few weeks before the South Carolina primary rather than eight days before, these opposing views might have been put to the test.  Obama might by now have nominated a Black or Asian-immigrant or female moderate whose name appeared first on his long shortlist and then on his short shortlist by dint of the algorithms that produce such shortlists.  Clinton would shout her support from the hilltops of the Blue Ridge Mountains, Sanders would criticize her for shouting, and Clinton would shout: sexism.

But Sanders also would criticize the choice, further securing that special place in hell.  Or maybe not securing it, since this is 2016, not 1996 and not even 2006.

Actually, although the shortlist list-makers mostly haven’t noticed, this is the age of Ferguson, of Eric Garner, of Sandra Bland, of Walter Scott, etc., etc.  It is the age of (as Ferguson is a poster town for) extraordinarily inappropriate bail requirements.  It is the age of the funding of local government via exorbitant traffic fines, petty (trumped-up) ordinance-violation fines, metastasizing court fees, and prison fees.  It is the age of extremely belated (but extremely welcome nonetheless) broad public recognition that prosecutor misconduct is commonplace (and is tacitly invited by opinions issued by the Supreme Court in a variety of cases).

And it would be deeply offensive for Obama, or for that matter a second President Clinton, to nominate another Elena Kagan—or anyone who has no background in representing non-white-collar criminal defendants, especially in state courts or in federal habeas corpus cases that challenge state-court convictions, or related types of civil rights litigation.

It’s now permissible to mention the interests of the people whose lives are most profoundly and most directly affected by Supreme Court appointments.  Really.

Really.

My suggestions for Sanders’ (preferably very, very) shortlist, each of them with impeccable credentials and awesome accomplishments, are Jeffrey Fisher, the head of Stanford Law School’s Supreme Court Clinic, and Robert L. Wilkins, an Obama appointee on the D.C. Circuit Court of Appeals.

Fisher is not on anyone’s shortlist but mine, to my knowledge, but should be.  Among the shortlists that I’ve read, Wilkins appears only on one: Slate’s Dahlia Lithwick’s.  She writes about him:

Robert L. Wilkins (D.C. Circuit Court of Appeals): Age: 53. Wilkins, a black American who was raised by a single mom, has a law degree from Harvard Law School and served as special litigation chief for the D.C. Public Defender Service. Wilkins gained attention for civil rights battles he has waged, including a precedent-setting fight against police racial profiling in Maryland, and for his work on the National Museum of African American History and Culture.

Wilkins was not on my radar screen until I read Lithwick’s article today.  He now ties for first place on my list.  I’d love to see them both on the Court.

Another name on Lithwick’s list, Goodwin Liu, has been on my radar screen for a long time. Lithwick writes about him:

Goodwin Liu (California Supreme Court): Age: 45. The son of Taiwanese immigrants, Liu was an Obama pick for a seat on the 9th Circuit in 2010 but was blocked by Republicans. He has distinguished himself as a left-leaning moderate on California’s high court. Given his prior confirmation battles, this would be an especially heavy lift.

His 2010 nomination to the 9th Circuit Court of Appeals was filibustered by Senate Republicans because as a law professor at UC Berkeley in 2005 he gave strong testimony against Samuel Alito during Alito’s confirmation hearing.  He predicted that Alito would be exactly the kind of justice that he is.

Lui as a high-profile liberal law professor at UC Berkeley was outstanding.  But I read not long ago (I can’t remember where) what Lithwick says in her article: that he’s more moderate than expected as a state Supreme Court justice.  I don’t know what the specifics are.  But he’s brilliant and presumably is navigating a course geared toward another nomination to a federal appellate court or to the Supreme Court.

A bonus if Lui’s nominated: the highlighting of exactly how spot-on he was about Alito. And an education for the public about the specifics of Alito’s tenure as a justice.  As well as the fun of imagining the childishly thin-skinned Alito suddenly faced with the prospect of possibly having Lui as a colleague.  (That’s three bonuses, not just one.  But he’s still only my third choice.)

If Sanders is willing to soon have a tentative shortlist, I dearly hope he will borrow mine.  It’s not copyrighted.  And I have no pride of authorship.

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The immediate impact of the death of Justice Scalia [correction appended]

Dan Crawford emailed me shortly after the news broke about Justice Scalia’s death, asking whether I have any random thoughts about it.  Here’s what I wrote back:

I posted a comment to Bill’s post on the announcement, saying that I think everyone should take a deep breath before saying much of anything.  It’s absolutely huge, but I think those of us on the polar opposite of the ideological spectrum should cool it for a day, as a small courtesy.

But it will have a huge immediate effect: There are several cases on the court’s docket this term–cases that would have profound impact, on unions, on affirmative action, on environmental law regulation and the Paris climate-change accord, on the extent to which the executive branch can regulate anything, on the permissible reach of executive orders, including of course on immigration issues–that would have been decided 5-4, some of them altering really broad areas of law and politics.

By “on the docket,” I mean cases already argued this term, cases scheduled for argument by the end of April, and cases that the court is currently considering whether or not to hear but that very likely the court would have agreed to hear in order to upend some major area of law. Expect a slew of dismissals of cases in the first and second of those categories, and a very few cert. grants the rest of this term (cases granted going forward will be heard next term, not this term).

I think I’ll repost this email as a post.

Done.

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CORRECTION: Scotusblog’s Tom Goldstein has a thorough account of what will happen in the closely divided cases: If 4-4, the court will issue an order saying that the lower court’s decision is “affirmed by an equally divided Court.”  It’s tantamount to a dismissal, but technically it is not a dismissal. Goldstein says “we should expect to see a number of such cases.”

Also, I knew there was one case of existential (for the Democratic Party) importance, but I couldn’t think of what that case is.  It’s Evenwel v. Abbott, on the meaning of the “one person, one vote” guarantee.  (Thanks, Tom Goldstein!)  And Goldstein notes something I forgot about the big affirmative action case, Fisher v. University of Texas, Austin: Elena Kagan has recused herself in the case, because when the case was heard at the court on its first go-around there (this is its second one) Kagan was involved in it as U.S. Solicitor General, representing the federal government as an amicus.  So Fisher will be decided 4-3.*

Added 2/13 at 8:51 p.m.

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*Ooops. Reader C0Rev wrote in the Comments thread: “I think this: ‘So Fisher will be decided 5-3’ was meant to mean ‘So Fisher will be decided by 7 Justices.’”

Yup; that sentence really did originally say “So Fisher will be decided 5-3.”  Well, no one has ever accused me of being a mathematician.

Seriously, thanks, CoRev.

Added 2/14 at 10:00 a.m.

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Conservative Legal Movement Week at the Supreme Court

This is Conservative Legal Movement Week at the Supreme Court.  (Okay, even more so than most weeks.)  Things really get going tomorrow, when the court will hear argument in two legislative-redistricting cases at the behest of (surprise!) Conservative Legal Movement voters represented by Conservative Legal Movement lawyers whose names on a petition for review (a “petition for certiorari”) guarantee that five justices will read the petition.  (All but one is a member of the usual-suspect crowd; the other one is a St. Louis-based lawyer I’ve never heard of, but presumably is active in Republican election-law circles.)

Things get going today with a state-sovereignty case, but this case is peanuts—just a small appetizer—compared with what will come tomorrow.  The first one tomorrow, Harris v. Arizona Independ­ent Redistricting Commission, is the one that will be argued by the St. Louis lawyer.  You can read about it here.  It is, best as I can tell—and I make no claim whatsoever to expertise in election law—by far the less far-reaching of the two redistricting cases, and because an outcome favorable to the petitioners, it seems to me, might not be an unalloyed long-term (or even short-term) victory for Republican candidates, an outcome in favor of the petitioners may not be in the bag.

Not so for the effects of a victory for the petitioners in Evenwel v. Abbott, Governor of Texas, the second case to be argued tomorrow.  Its purpose is to have the Supreme Court declare that legislative districts, federal and state, must be apportioned according to the number of eligible voters in each district, rather than the number of residents in each district as indicated by the Census.  So minors, recent immigrants or immigrants who have not yet gone through the naturalization process, convicted felons, and elderly Blacks who cannot produce a birth certificate from Nowhere County, Mississippi, will lose their status as legal constituents of the policymakers formerly known as their congressional or state legislative representative.

Which presumably would permit them to stop paying taxes, including sales taxes, since, y’know, the founders would be upset at the idea of taxation without representation.

This is outright crazy.  But it also in right in line with John Roberts’ own recent, surprising public statement about what his modus operandi is in joining with his four Reagan-era Conservative Legal Movement colleagues to make dramatic changes in broad areas of law: quiet.

As in, speak very softly and drive an armored vehicle (i.e., cases in obscure areas of election law and procedural and jurisdictional law the public has no clue exist) through the Democratic Party; labor unions; civil rights plaintiffs of the sort that benefited from the original purpose the Court stated for its “strict scrutiny” equal protection pronouncements that the Court now regularly disavows without actually mentioning that it is doing so (more about this, maybe, in a follow-up post about Wednesday’s argument at the court); civil rights plaintiffs who are challenging state and local authorities’ bald and routine violations of even the most obvious and fundamental civil and human rights; and ordinary consumers.  (Ordinary is a careful selected term or art here, but I won’t elaborate in this post.)

Roberts and his compadres  have, since the ’80s,  had a list of perhaps 10 areas of law that they they are hellbent on using the Supreme Court and the lower federal courts to rewrite.  It is the Federalist Society’s unabashed agenda.  But always—first, foremost and forever—their priority is using the Supreme Court to try to orchestrate a permanent Republican majority across the full breadth of elective office: the presidency, both houses of Congress, state governorships, state legislatures, and various county and municipal offices.  And Roberts, whose very essence is stealth, does not ever take is eye off that ball, even if his more intemperate or less skilled colleagues do.  If Roberts miscalculates on whether or not the public will notice a momentous opinions replete with bizarre statements—Citizens United, for example, in 2010—it may be time two years later to uphold much but not all of the Obamacare statute, since that issue wasn’t an election-law case and ruling striking the ACT down did have the potential to inure to the benefit of Democrats in the 2012 election.  Including to Obama.

So I guess I should add one more reason why the petitioners in Harris might lose: The opinion in Harris and the opinion in Evenwel will be released either on the same day or a day or two apart with Harris released first.  Seeee, everyone?  The Evenwel ruling wasn’t partisan.  Got that?

A coup by any other name—Supreme Court capture of the electoral process, I guess, would be the name—smells as rotten.

The case argued on Wednesday—and it is the only case to be argued that day; usually the Court hears arguments in two cases on the very few days each year on which it hears arguments—Fisher v. University of Texas at Austin, is a standard-issue affirmative-action-in-public-universities case, although this case is back for its second turn at the Court.

I might write more about this later today or tomorrow in a follow-post (Conservative Legal Movement Week at the Supreme Court, Part II, I guess), but this case has a remarkable peculiar twist added only at the Supreme Court level—normally problematic procedurally, but, well, y’know ….  This time around, aided by the suggestion of the dissenting judge (an aggressive, high-profile Conservative Legal Movement G.H.W. Bush appointee) on the lower appellate court panel that ruled in favor it the university and its admissions criteria, the petitioner, Abigail Fisher, a white graduate of a public high school in a wealthy Houston suburb, in claiming an affinity with African-American students who were admitted to the university.

It’s an insult to those students, she now claims.  And since for several reasons, including that her grades and SAT score were not high enough to gain her admission even without the school’s use of race in any aspect of the admissions policy, and that she long ago now graduated from another university (a weaker problem than the first, in my opinion), she may otherwise lack legal “standing”—an actual live and particularized injury—to pursue the case, she wants to piggyback on the insult she suddenly says was perpetrated on the Black students under the university’s admissions system the year she applied and admits now under the same policy.  She’s concerned about the university’s insult to the Black students they admit!

This is far more clever than her earlier piggybacking on Supreme Court petitioner Jennifer Gratz, the white salutatorian of her working-class suburban Detroit high school whose SAT score apparently wasn’t quite up to the par set by the children of more upscale folks, and who eventually won her case against the Supreme Court against the University of Michigan at Ann Arbor in 2003 (after she, too, had graduated from another university) in a case challenging not the university’s preference for the children of those who looked to be able to pay the tuition without financial assistance from the school or student loans, but instead the university’s racial affirmative action program.  Because, well, that was the only civil rights avenue available to her–although once the original purpose of the “strict scrutiny” test for determining equal-protection lawsuits, as has now occurred, the automatic application of strict scrutiny to any equal protection claim based on race, but not to most other grounds for a claim  of denial of equal protection, itself violates equal protection.  I would think.

But on the piggybacking-on-the-insulting-the-Black-admittees’ ground, three of the current justices, and (I think) Roberts as a lawyer for the Bush folks (I think), did think George W. Bush had legal standing to invoke the voting rights of Florida Republican voters whose votes would be diluted if all those ballots with hanging or pregnant chads used by Democrats in counties and precincts that hadn’t cleaned their punch-card equipment since the Civil War were counted.  Now, I’ll grant that the Bush v. Gore opinion did limit its ruling to that case only.  But there are other Republicans in need of such a courtesy from the Court, too, and Abigail Fisher seems to be one of them.  “Standing” on that ground is probably in the bag for Fisher.

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Hamlet’s Decision is Bad News for Janet Napolitano

Okay, I get Joe Biden’s extreme, unabated grief over the death of his son last May.  But there are, in my opinion, no circumstances under which the Hamlet pose, with its many, many leaks from friends, should have gone on beyond Labor Day.  There are, after all, (or should have been, anyway) some important considerations beyond his feelings and his ambition.  Such as the Democratic Party’s interest in not having to deal with what became a ridiculous spectacle of sorts.

Biden would not have won the nomination, even if he had not pronounced himself the ultimate triangulator who could get triangulation things done, as he did yesterday.  But he did.  Which was about to prompt me to notify AB readers that Biden said two years ago that Janet Napolitano should be appointed to the Supreme Court.

Seriously.  He said this.  The idea of Janet Napolitano as a Supreme Court justice would have warmed the hearts of Hispanic and African-American voters, of course, given their fondness for Sheriff Joe Arpaio and 1980s-‘90s-era tough-on-crime criminal laws and still-current police tactics and outrageous prosecutor conduct.  Because we don’t have enough current Supreme Court justices who are overt proxies for law enforcement folks who engage in outrageous misconduct, see.

Biden took one—and, to my knowledge, only one—important and gutsy step regarding civil rights in his entire career: In the spring of 2012 he publicly stated his support for same-sex marriage, forcing Obama to do the same.  But that just isn’t enough for me, or any other progressive, to have wanted him to become the Democratic nominee.  At least now we won’t have to suffer through his primary candidacy.

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UPDATE: Heather Digby Parton in an article in Salon today captures perfectly the depth of Biden’s delusions as he revealed them so stupefyingly yesterday.  H/T Greg Sargent.  (Her article was written before Biden’s announcement today.)

Dismaying. Just plain dismaying.

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