When the wife of Clarence Thomas last made national headlines, it was for leaving a message on Professor Anita Hill’s office line on a Saturday morning: apologize to my husband for the mean things you alleged in 1991. Continue reading
Last night’s gleeful ruling from Judge Reed O’Connor of the Federal District Court in Fort Worth, according to Ezra Klein, presents Democrats with, to use that most baleful of modern jargon, an opportunity. “But with Obamacare under constant threat, Republicans have refocused Democrats on building what they failed to build in 2010: a universal health care system simple enough and popular enough that it is safe from constant political and legal assault,” Klein writes. “And that means some version of Medicare-for-all.” His conclusion:
Imagine a world where Judge O’Connor’s ruling is upheld. In that world, a Republican judge cuts tens of millions of people off health insurance mere weeks after Republicans lost a midterm election for merely trying to cut those people off health insurance. The aftermath of that would be a political massacre for the GOP, and a straightforward mandate for Democrats to rebuild the health system along the lines they prefer.
It’s true that states like Virginia that have expanded Medicaid coverage have seen declining enrollment in the ACA. Yet Klein’s arguments are too clever by half. It’s not 2010, Joe Lieberman is gone, therefore Medicare For All isn’t anathema in polite circles. But on what grounds does Klein assume (a) the Joe Manchins in the Senate will embrace Medicare For All (b) the consequences of stripping insurance from millions of people will sober up Republicans because they didn’t want so drastic a decision from the Texas court — a decision, I should note, silly on its face? Congress repealed the individual mandate in 2017; what was left to overrule unless the judge wanted to revel in the “judicial activism” that conservatives have accused liberal judges of?
I gave up accusing the GOP of hypocrisy years ago, and I trust Ruth Bader Ginsberg and Stephen Breyer will still live by the time the Supreme Court grants cert to the appeal.
Ian Millhiser’s explanation for why the Supreme Court refused to hear two cases brought by conservatives to defund Planned Parenthood makes sense to me, and so does his theory of why Chief Justice John Roberts and Justice Brett “Bart” Kavanaugh sided with the liberal faction to deny certiori:
It’s very doubtful that this equilibrium will last — Kavanaugh’s been very clear that he intends to kill Roe v. Wade. But the Court’s decision to not hear Andersen and Gee gives credence to the theory that Roberts and Kavanaugh want to give the nation some time to forget about how Kavanaugh got his current job before they declare outright war on reproductive choice.
Monday’s order, moreover, is unlikely to protect Medicaid recipients from the Supreme Court for very long. In the long run, some state is bound to violate the free-choice-of-provider provision in a way that doesn’t implicate a group associated with abortion. When that happens, this very conservative Supreme Court will be free to limit this provision without doing so under the close scrutiny it will face if the case name includes the words “Planned Parenthood.”
But the decision does raise a question: why can’t the Democratic Party, now fully stocked with younger and browner legislators who aren’t men, endorse federal legislation that protects a woman’s right to choose an abortion from the interventions of states? Too long has the party relied on Roe v. Wade as a carapace as subsequent decisions have poked holes in it. I forgot where I read that Roe establishes a floor, not a ceiling. Obviously they would need to control the White House and the Senate too. But campaigning openly and unequivocally for abortion rights is a standard to which voters would rally, especially the city and suburban-dwelling Democrats comprising the core of the Democratic base (I’m aware that many Americans squirm around a right to an unfettered abortion, but campaigns aren’t built around nuance).
Finally, natal care gets too little attention. As abortions have gotten safer in the United States, childbirth has gotten more dangerous. I doubt Kevin McCarthy, Mitch McConnell, and Donald Trump care.
Longtime readers will note, I hope with gratitude, that I don’t respond to every Donald Trump-“written” Tweet. But I will respond to the likes of Michael Bechloss and the literate white mummies who frequent “Morning” Joe’s program. Continue reading
Pressing his ears against the commentariat’s din, Matthew Yglesias comes to obvious conclusions: only a Democratic majority in the Senate could have stopped the Brett Kavanaugh confirmation. Conversely, Mitch McConnell’s legislative genius, such as it is, consisted in whipping a bare majority. Even in those halcyon days of the sixty-vote filibuster over which Harry Reid presided, Barack Obama got nominees Sonia Sotomayor and Elena Kagan confirmed not because a spirit of benign comity persuaded Susan Collins and Lindsey Graham to vote for them: the Senate confirmed them because he still enjoyed a fifty-plus Democratic majority that could’ve gummed up the works if it wanted to. Reid and Obama didn’t need Collins and Graham. Continue reading
“There was, in this performance, not even a hint of the sagacity one expects from a potential Supreme Court Justice,” Doreen St. Félix writes in The New Yorker.
More than presenting a convincing rebuttal to Ford’s extremely credible account, Kavanaugh—and Hatch, and Lindsey Graham—seemed to be exterminating, live, for an American audience, the faint notion that a massively successful white man could have his birthright questioned or his character held to the most basic type of scrutiny. In the course of Kavanaugh’s hearing, Mitchell basically disappeared. Republican senators apologized to the judge, incessantly, for what he had suffered. There was talk of his reputation being torpedoed and his life being destroyed. This is the nature of the conspiracy against white male power—the forces threatening it will always somehow be thwarted at the last minute.
Many of us who are writers embrace complexity; we impose subtlety on men and women who repel it. Listening to Kavanaugh sound the horn of the forever maudlin when mentioning his kids, mom (a judge), and the number of female clerks whom he’s hired, I thought these things could be true without being exculpatory. Kavanaugh may have assaulted a woman as a teen and years later pick up the newspaper for the old lady who lives across the street.
Then, after Lindsey Graham trampled on the vineyards where the grapes of wrath were stored, I changed my mind: I don’t want to think of Kavanaugh and his conservative enablers as good men. To think they are would ascribe to them a complexity they don’t deserve. Abigail Nussbaum:
It should go without saying, but: a good guy doesn’t lie under oath. A good guy doesn’t brazenly spread falsehoods that he knows everyone can see through, in the arrogant belief that his privilege will protect him from any consequences or loss of public regard. A good guy doesn’t rant and rave about taking revenge on his supposed enemies while interviewing for a job synonymous with impartiality and open-mindedness. And, oh yeah, a good guy would admit to his wrongdoing, apologize for it, and withdraw his name from consideration for the highest court in the land, in recognition of the fact that he doesn’t deserve to be there. If Black believes Ford, as he claims to, then there’s simply no way to categorize Kavanaugh as a good guy, no matter how many carpools he drives or how nice he is to his poker buddies.
…People who blatantly don’t care about the safety and wellbeing of women are bad. But so are people who are so deeply invested in constructing a narrative of redemption for abusers and bad actors (privileged ones, obviously) that they irreparably skew the conversation in that direction, and train the rest of us to see villains as misunderstood victims.
Ford kept her composure as she explained why her life was ruined; Kavanaugh lost his when he did. Every GOP senator apologized to Kavanaugh for the ruin his life has become; every one of them hid behind a female sex crimes prosecutor and said nothing to Ford.
The lawyer who pressed the Starr investigation to ask ever more prurient questions of Bill Clinton grows “frustrated” at the line of questions with which GOP allies are prepping him.
An array of White House aides, playing the role of various senators on the Judiciary Committee, quizzed Kavanaugh last week about his sex life and other personal matters in an attempt to prepare him for a hearing that would inevitably be uncomfortable.
In his answers during the practice runs, aides said, Kavanaugh condemned sexual assault and carefully avoided seeming to discredit Christine Blasey Ford, a psychology professor in Northern California who has accused the nominee of pinning her to a bed, groping her and putting his hand over her mouth to stifle her screams as he tried to take off her clothes at a drunken high school party in the early 1980s.
But Kavanaugh grew frustrated when it came to questions that dug into his private life, particularly his drinking habits and his sexual proclivities, according to three people familiar with the preparations, who requested anonymity to discuss internal deliberations. He declined to answer some questions altogether, saying they were too personal, these people said.
“I’m not going to answer that,” Kavanaugh said at one point according to a senior White House official, who said that the questions were designed to go over the line and that he struck the right tone.
I don’t read Josh Marshall much these days because of his histrionic tendencies and his way of signing off posts with the equivalent of a hastily scrawled, “I don’t know, we’ll see.” But I agree with his conclusion of how the Christine Blasey Ford’s accusations won’t shake the Senate GOP at all:
The chance of letting that opportunity slip through their fingers is unthinkable.
The White House and Senate Republicans are likely thinking that regardless of the credibility of the claim or what they think of it, Kavanaugh absolutely positively has to be confirmed. Because it’s not just about Kavanaugh. If he’s not confirmed it opens up the possibility that they won’t get the chance to replace Justice Kennedy and secure the fifth vote on the Court at all. Given that the Garland seat was stolen, should Democrats reclaim the chamber, I don’t think they should approve any nominee from President Trump. That’s unlikely. But Democrats won’t give the President the opportunity to nominate a maximalist right wing judge the way Republicans are now. That’s a big difference.
Ever since Harry Blackmun wrote the majority opinion for Roe v. Wade, giving the New Right the means by which to command a dormant voting bloc (i.e. evangelicals), modern conservatism has spent millions creating political action committees and weirdly named Pinterest groups; modern conservatism’s reason for existing has been to deliver a Supreme Court majority sufficient enough to send abortion back to states where it is legal, condemning millions of poor women to coat hanger procedures because they lack the wherewithal to travel while conservative wives themselves pay for clandestine abortions. Despite Jeff Flake’s protestations and Susan Collins’ finely calibrated mewlings of ambiguity, I can’t imagine more than forty years of effort yielding, not when gutting the Fourteenth Amendment
Strange stirrings in the Senate about the Brett Kavanaugh. Although the odds are he still joins serial harasser Clarence Thomas with the other Supremes, a new accusation of sexual misconduct would suspend hearings if we lived in a two-party system where one party was less obsessed with nominating justices who want to (a) return abortion “to the state level” (b) return abortion to the realm of the rich and well-connected, many of whom are Republican and live in states set to declare abortion illegal.
Anyway, Dahlia Lithwick is not optimistic:
The real tragedy is that we do not need this woman’s story to understand who the current Supreme Court nominee is. Because here is what we do know about Judge Kavanaugh: We know that he clerked for and had a yearslong close relationship with a serial abuser of women and claims he knew nothing about it. He claims he doesn’t recall being on a hypersexualized and misogynistic email list and claims he didn’t bother to search to determine whether he was. He claims that when the serial abuser of women for whom he clerked was revealed to be a serial abuser of women, he believed the victims and yet called the abuser, because he was worried about the abuser’s mental health. Worrying more about the accused judge than the accusers one claims to believe is the system protecting the system. This is why women don’t come forward.
The loathsome Orrin Hatch, twenty-seven years later, still sits on the Judiciary Committee — what a delight! What Dianne Feinstein gained by holding on to the initial letter for a couple of months I’m not sure — timing and surprise?
American history is disgracefully taught when taught at all, so knowing that Supreme Court jurisprudence isn’t part of an undergraduate curriculum, let alone AP high school curriculum, is no surprise. Continue reading
Judge Brett M. Kavanaugh, President Trump’s Supreme Court nominee, gave a revealing speech last fall in which he lauded former Chief Justice William H. Rehnquist for having dissented in Roe vs. Wade and for rejecting the notion of “a wall of separation between church and state.”
He also praised the late chief justice’s unsuccessful effort to throw out the so-called “exclusionary rule,” which forbids police from using illegally obtained evidence.
All three of areas of law — abortion, religion and police searches — are likely to be in flux if Kavanaugh is confirmed and joins the high court this fall.
Kavanaugh’s comments are significant because they were in a speech, not a court opinion in which he was bound by precedent, said David S. Cohen, a law professor at Drexel University in Philadelphia.
The most common arguments I endure from opponents of Roe v. Wade concern its reputation as a feebly written decision (“Even Ruth Bader Ginsberg said so!”) and as an unwarranted federal protection of a matter best left to the states. Scott Lemieux swats aside these arguments. Few felicities of judicial language have been the subject of as much mockery as FDR appointee William O. Douglas’ phrase in his concurrence in 1967’s landmark Griswold v. Connecticut, in which the Court ruled that bans on contraception violated the right to marital privacy: “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
Erratic and downright slipshod, the latter in his last decade, Douglas was one of the last justices to write his own opinions, which like Oliver Wendell Holmes bent toward the brief and aphoristic; he wanted his opinions to be understood by the average person. No one quibbled with his intelligence or ability. Nor his ambition (Roosevelt goosed him into thinking he’d be president one day).
Opponents of Roe writing for general audiences routinely invoke the “penumbras” phrase, from Justice William O. Douglas’s opinion striking down a ban on the use or distribution of contraception in Griswold v. Connecticut, as if doing so self-evidently renders the opinion absurd. Douglas had used that phrase to defend the idea that the Constitution includes an implicit right to privacy, in at least some matters of marriage and family, and the Roe majority cited it to extend that idea to the realm of abortion.
But Justice Douglas’s observation that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” describes a perfectly banal concept: The enumeration of rights, individually or collectively, implies the existence of other rights. As Douglas himself pointed out, in Griswold, the Supreme Court has enforced a “right of association” although that phrase is not found in the Constitution, because guarantees of the right to free speech and to petition the government would mean little without the right to form political associations.
Douglas became the longest serving Supreme Court justice in history. His replacement? John Paul Stevens, who on his 2010 retirement took second place.
As for the federalism question, the stakes are grimmer:
As previously discussed, Congress has passed, and the Supreme Court has upheld, a nationwide ban of what anti-abortion groups have labeled “partial-birth abortions.” To find the last time the House of Representatives passed an abortion regulation, you would have to go all the way back to … this January, when it passed a bill that would require doctors to provide medical care for a fetus born alive during an abortion procedure.
And last year, the House passed a bill that would ban abortions after 20 weeks in every state in the union. So far, these bills have died in the Senate. But since the Republican Party is becoming more and more hostile to abortion rights, abortion would remain a national issue. Should the filibuster be eliminated or substantially watered down, a Republican government with slightly larger Senate majorities than it has now would be able to pass national abortion regulations.
The other myths that Lemieux deflates include the purported ease with which American can get abortions as opposed to the French, Roe‘s rescinding of any state regulation, and the strength of public opinion. It’s the kind of article I’d share with friends or print to stick on the refrigerator door.