Health Care

Justice Kavanaugh and Pending Obamacare Litigation

Some opponents of Judge Kavanaugh’s confirmation have sought to make his confirmation a referendum on the Affordable Care Act (ACA), and in particular the law’s regulations requiring the provision of health-insurance coverage without regard for pre-existing conditions. The implicit premise is that, as a Supreme Court justice, Brett Kavanaugh would pose a threat to these portions of the law.

Texas v. Azar is the focal point of the ACA-based attack on Judge Kavanaugh. Yet as I explained in this VC post, there is little reason to think this case will reach the Supreme Court, and even less reason to think that a Justice Kavanaugh would be a vote to strike down the relevant ACA provisions. The underlying legal theory in Texas v. Azar is quite weak, there’s little reason to believe Justice Kavanaugh’s vote would be decisive (given the Chief Justice’s prior ACA opinions), and the remedy sought is one Judge Kavanaugh’s record suggests he would be unlikely to endorse.

Law & the Courts

Kavanaugh Hearing Highlights

Many commentators complain that little was learned about how Brett Kavanaugh is likely to approach legal questions as an Associate Justice of the Supreme Court. While it is certainly true that Judge Kavanaugh did not commit to resolving particular questions in a particular way, and consistently parried various lines of “gotcha” questioning, he also spoke at some length about his judicial philosophy.

Over at the Volokh Conspiracy, Randy Barnett has a series of posts highlighting interesting and probative comments and exchanges from the hearings. They provide a useful window on Judge Kavanaugh’s view of judging, the Constitution, and the law, and show that when Senators were actually interested in listening and learning, the hearings served a useful purpose.

Law & the Courts

This Day in Liberal Judicial Activism—September 17

Justice David Souter at Harvard Law School. (Wikimedia Commons)

A mixed day for the Constitution:

1787—The Constitutional Convention unanimously resolves that “the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification.…”

1939—David Hackett Souter is born in Melrose, Massachusetts. In a tragic blunder, President George H.W. Bush appoints Souter to the Supreme Court in 1990. During his tenure on the Court, Souter proceeds to misread into the Constitution the Left’s agenda on a broad range of issues—for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), and imposition of secularism as the national creed.

Law & the Courts

This Day in Liberal Judicial Activism—September 15

1987—In order to help finance his 1985 desegregation plan for the Kansas City, Missouri, School District in Jenkins v. Missouri—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation”—federal district judge Russell G. Clark imposes a 1.5% surcharge on state taxpayers in the school district, orders a near-doubling of the property-tax levy in the school district, and directs the school district to issue $150 million in capital improvement bonds.

On appeal, the Eighth Circuit will reverse Clark’s income-tax surcharge, and the Supreme Court (in its 1990 ruling in Missouri v. Jenkins) will unanimously reverse Clark’s increase in the property tax. By a vote of 5-4, however, the Court majority will hold that Clark may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws. Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy will condemn the majority holding:

“Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”

2003—Ninth Circuit judges Harry Pregerson, Sidney Thomas and Richard Paez combine to produce a stupefying per curiam opinion (in Southwest Voter Registration Education Project v. Shelley) that enjoins the state of California from proceeding with its statewide election—on the recall of Governor Gray Davis, among other matters—scheduled for a mere three weeks later (October 7). In the words of Harvard law professor Einer Elhauge, the decision “elevates a straw-man argument against Bush v. Gore into constitutional principle, and then employs that bogus principle to deny the California electorate its constitutional right to oust its governor.”

Barely a week later, the en banc Ninth Circuit repudiates the panel opinion and allows the election to take place.

The Farmer Who Helped Save the Law

Back in 2014, Bruce Braley, Joni Ernst’s Democratic challenger for Iowa’s open Senate seat, warned fellow trial lawyers about the state’s senior senator, Chuck Grassley, at a fundraiser: If the Republicans win control of the Senate, “you might have a farmer from Iowa who never went to law school, never practiced law, serving as the next chair of the Senate Judiciary.” Well before Ernst’s victory, which would help return the Senate to the GOP, Braley apologized to Grassley for the remark. So should anyone else who underestimated the first non-lawyer to chair the Senate Judiciary Committee.

Grassley has shown himself equal to a succession of challenges leading up to Brett Kavanaugh’s Supreme Court nomination hearings. He took the gavel during one of the most trying periods any Judiciary chairman has ever faced. For years, a liberal school of legal thought permeating academia and the Democratic Party promoted the notion that life-tenured judges should treat the Constitution as a malleable vessel for the imposition of their policy preferences. The election of President Trump proved momentous to the rule of law as a new administration committed itself to the nomination of constitutionalists to the federal bench.

Democrats reacted by surpassing their prior obstructionism of nominees during Republican administrations in order to make it as difficult as possible for President Trump’s picks to be confirmed. They forced the Senate to take far more cloture votes on nominations—no matter how noncontroversial they were—than any prior Congress at the start of a presidency and made the Senate spend an unprecedented number of hours of post-cloture debate time.

They abused the committee’s blue slip tradition, which was designed to encourage consultation with a circuit or district court nominee’s home state senators. Democratic senators instead regularly engaged in an indiscriminate refusal to turn their blue slips in, obviously hoping that that would effectively kill nominations from their home states.

Grassley would have none of this abuse, instead shepherding through nomination after nomination and refusing to permit Democrats to turn the blue slip, contrary to established practice, into a veto.

The results have been nothing short of remarkable: 68 judges confirmed to date, including 26 for circuit courts. The latter figure shatters the record—22 under the first President Bush—for court of appeals confirmations during a president’s first two years, with over four months still to go before President Trump hits the two-year mark.

And Grassley’s Judiciary Committee accomplished all this while facing the challenge of filling two Supreme Court vacancies. A year and a half after the hearings for Neil Gorsuch, the opposition set the bar for antics even lower during Kavanaugh’s hearings last week.

Because their objective was to obstruct the nomination, nothing Chairman Grassley did would have satisfied Democrats, despite his commitment to provide a fair forum for his colleagues. Democrats used that forum to make a spectacle of themselves. Perhaps they underestimated a senator who was sitting on his fifteenth Supreme Court hearing since joining the Judiciary Committee in 1981.

Grassley oversaw the production of over 480,000 pages of documents, surpassing the document productions for the prior five Supreme Court justices combined. Despite that, Democrats concocted a grievance maligning the same process that was observed during the Elena Kagan nomination and demanded millions of pages more from Kavanaugh’s time occupying the White House staff secretary’s office, documents that were irrelevant to predicting judicial performance.

Democrats made their demands through shrill displays from the inception of the hearing.  The minority senators interrupted the first day of hearings 63 times before lunch. Their noise was supplemented by the arrests of at least 227 demonstrators throughout the hearings. The remarkable thing is that even amid the cacophony, Sen. Cory Booker acknowledged Grassley’s widely recognized “sense of fairness and decency.” The Democrats’ big mistake: taking advantage of Grassley’s fairness and decency. The chairman’s willingness to let his Democratic colleagues speak had the effect of revealing their own lack of those traits.

Among the many misstatements and empty innuendo Democrats brought into the hearing, Booker’s Spartacus moment on the last day of Kavanaugh’s testimony deserves the blue ribbon. Although it is routine for some sensitive executive branch materials to be accessible only to the Senate as “committee confidential,” Democrats made that designation another grievance. But Grassley deftly accommodated specific requests to release any of those documents. Booker grandiloquently and dishonestly declared in his “I am Spartacus” moment that he had to violate committee rules to release (innocuous, as it turned out) Kavanaugh documents that (as it also turned out) had already been approved. Grassley’s staff had worked into the wee hours of the morning to accommodate Booker’s request.

Grassley’s commitment to transparency rendered the antics of Kavanaugh’s opponents transparent. Long before the hearings, Judiciary Committee Democrats had announced their opposition to the nominee before seeing any documents or asking any questions. The charade that they were seeking deliberation did not end with the kitchen-sink document requests or gotcha questions during the hearing. This week, the Democrats sent Kavanaugh 1,278 written questions, surpassing the total number of such questions submitted to all prior nominees in U.S. history combined.

At yesterday’s Senate Judiciary Committee business meeting, Grassley allowed votes on several additional unsuccessful dilatory motions by Democrats before making clear there would be a vote to report Kavanaugh to the full Senate during the next business meeting on September 20. He sent an unmistakable message: Any attempt at a filibuster during the meeting would not work. The Committee then proceeded to report out 11 lower court nominees to the full Senate, with more to follow next week, even with Kavanaugh on the agenda. That comports with Grassley’s work ethic.

The successful confirmation of constitutionalist judicial nominees foretells a restoration of the courts to the more modest role envisioned by the framers. That will be a victory for the rule of law and representative democracy. And it will have happened under the leadership of the Iowa farmer turned chairman of the Senate Judiciary Committee.

Law & the Courts

Mobbing Susan Collins

Having evidently failed to persuade Senator Collins to vote against the Kavanaugh nomination, left-wing activists have now resorted to bullying her and to concocting a campaign-contribution scheme that is of dubious legality under federal anti-bribery law.

Per this Wall Street Journal house editorial, Collins reports that her state offices have been receiving “out-of-state voicemails” that are “incredibly offensive,” including one caller who “threatened to rape one of [her] young female staffers.” In another silly stunt, anti-Kavanaugh activists have been sending Collins coat hangers, which she in turn has had the good sense to send to a local thrift shop that needs them.

In the campaign-contribution scheme, a group called Maine People’s Alliance is leading an effort to solicit funds from donors to pressure Collins to vote against the Kavanaugh nomination. Under the scheme, funds pledged will go to Collins’s opponent in her 2020 election campaign if she votes for Kavanaugh; if she votes against him, the pledges will be released. As of two days ago, the effort had raised more than one million dollars.

As the Washington Post reports, Adav Noti of the Campaign Legal Center “told the Post he thought the listing was illegal, noting that bribery is a federal crime.” The Campaign Legal Center, I’ll note, would not be mistaken by anyone for a conservative group: its board chair is Norman Ornstein, and it holds liberal positions on campaign finance and other issues.

Under federal law (18 U.S.C. § 201), no one may “directly or indirectly, corruptly give[], offer[] or promise[] anything of value to any public official … with intent … to influence any official act.” The argument that the Maine People’s Alliance scheme violates this anti-bribery law is straightforward: Maine People’s Alliance is promising Senator Collins that it will withhold a massive amount of money from her re-election opponent if she votes against Kavanaugh.

Oddly, law professor Rick Hasen, who has elsewhere mischaracterized textualism as mere “word games” (see point 2 here), breezily dismisses this argument as “wrong” without seriously engaging it. Even worse, ignoring Adav Noti entirely, he pretends that it’s just a cynical argument by conservatives.

By saying that the bribery argument is straightforward, I am certainly not contending that it is open and shut. Although it’s clear, for example, that a promise of campaign funds is a thing “of value” under the statute, it’s conceivable that a promise to withhold funds from a public official’s opponent wouldn’t qualify. It also might be that the adverb “corruptly” or the principle of lenity (construing criminal statutes leniently) would lead to a different result. And under Citizens United it’s even possible that Maine People’s Alliance, despite being a corporate entity (it’s a nonprofit corporation), has a First Amendment right to engage in its scheme.

In any event, unless I’m badly misreading things, those who expect Collins to be intimidated by these various stunts seem to have mistaken whom they’re dealing with.

Law & the Courts

The Truth about Democrats’ Opposition to Brett Kavanaugh

Supreme Court nominee Judge Brett Kavanaugh at his Senate Judiciary Committee confirmation hearing, September 4, 2018. (Jim Bourg/Reuters)

September 20 — that’s when the Senate Judiciary Committee will likely vote on Judge Brett Kavanaugh’s Supreme Court nomination. While only one name will be up for consideration, it will appear as though two different nominees are under discussion.

That’s because most Democrats planned from the start to vote against President Trump’s nominee, no matter who it was. And when the actual nominee turned out to be so well-qualified and widely respected, they had to create a fictional nominee to oppose.

This fictional Kavanaugh, according to Senator Dianne Feinstein (D., Calif.), “believes this president cannot be investigated, cannot be tried.”

The real Kavanaugh has never suggested any such thing. He gave a speech in 2008 — nearly a decade before “this president” was elected — suggesting that Congress consider delaying any prosecution or civil suit against any sitting president until after he or she leaves office. As Kavanaugh explained at his confirmation hearing, he was talking about timing, not immunity. “The point,” he said in that 2008 speech, “is not to put the president above the law or to eliminate checks on the president.” What part of the word “not” in that sentence do Democrats not understand?

The fictional Kavanaugh whom Democrats oppose rejects the Supreme Court’s decision in United States v. Nixon, which forced President Richard Nixon to turn over tapes about the Watergate break-in. Senate minority leader Chuck Schumer (D., N.Y.) said: “If Kavanaugh would’ve let Nixon off the hook, what is he willing to do for President Trump?”

The real Kavanaugh, both before and after he became a federal judge, has written that United States v. Nixon was one of the Supreme Court’s most important decisions. In 1998, he wrote that it “reflects the proper balance of the president’s need for confidentiality and the government’s interest in obtaining all relevant evidence for criminal proceedings.” In 2014, he called the decision one of the “most significant cases in which the judiciary stood up to the president.” And in a 2016 speech, Kavanaugh called this precedent one of the “greatest moments in American judicial history.” Democrats’ fictional tale about Kavanaugh on this issue requires believing that the word reject means embrace.

The fictional Kavanaugh whom Democrats oppose is a cypher whose years of service in the executive branch remain shrouded in mystery. On September 4, Senator Richard Blumenthal (D., Conn.) made a motion to adjourn the confirmation hearing “so we can access the documents we need.” But 57 days earlier, Blumenthal said he would vote against the nomination “because of Judge Kavanaugh’s record and writings — which I have reviewed.”

Similarly, Senator Kamala Harris (D., Calif.) asked that the hearing be postponed so she could review the latest batch of documents related to Kavanaugh’s service in the executive branch. Yet Harris said she opposed Kavanaugh on June 27, twelve days before anyone knew he would be nominated.

The real Kavanaugh was nominated to the U.S. Court of Appeals in 2003 and had not one, but two, confirmation hearings before his appointment three years later. In twelve years on the appeals court, he wrote or joined nearly 700 opinions — which both Leahy and Schumer have said is the best information for evaluating a Supreme Court nominee.

In addition to that lengthy paper trail, Kavanaugh provided 17,000 pages of his speeches, articles, and teaching materials when he submitted his Judiciary Committee questionnaire in mid July. As of August 21 — two weeks before the hearing began — the Judiciary Committee had posted to its website more than 267,000 pages of material related to Kavanaugh’s record. The committee and the public have more information about the real Kavanaugh’s record than about any previous Supreme Court nominee.

Rather than make up a fake nominee to vote against, Senate Democrats should make the case for opposing the real Kavanaugh . . . if they can. They should explain to the American people why judges should promote a political agenda or decide, before knowing all the facts, which parties will win their case. They should justify why five members of the Supreme Court should be able to control what the Constitution and statutes mean.

They oppose the real Kavanaugh for only one reason: that he will not be that kind of political judge.

Law & the Courts

On Reported Alaska Native Opposition to Kavanaugh

According to this Huffington Post article, some self-described advocates for Alaska Natives say they’re putting intense pressure on Alaska senator Lisa Murkowski to oppose Judge Kavanaugh’s nomination to the Supreme Court over concern on how he might rule on the case of Sturgeon v. Frost, to be argued in the Court on November 5.

The Sturgeon case presents a complicated statutory question over whether the National Park Service or the state of Alaska has authority to exercise regulatory control over certain lands located within the boundaries of the national park system in Alaska. The advocates express concern that the Court might rule in a way that devastates Alaska Natives’ subsistence fishing rights.

On the premise that this is not an issue that has been entirely ginned up by opponents of the Kavanaugh nomination, let me briefly identify several reasons why it should not affect Murkowski’s assessment of Kavanaugh:

1. In his brief, John Sturgeon specifically disclaims any interest in having the Court address the so-called Katie John subsistence decisions that the Alaska Natives value:

[T]he Ninth Circuit’s application of its Katie John subsistence decisions had at least some foothold in the statute. The Court need not overturn or otherwise address the issue of subsistence management regulation in Alaska in order to rule in favor of Mr. Sturgeon. Title VIII supports an array of subsistence management regulations that are beyond the scope of Mr. Sturgeon’s challenge. The focus of Mr. Sturgeon’s challenge is instead the Ninth Circuit’s decision to expand the reasoning of the Katie John cases beyond subsistence and, in so doing, grant NPS plenary control over State waterways. [P. 34 n. 4 (citations omitted).]

Sturgeon’s lawyer has likewise explained that Sturgeon supports protections for Alaska Natives’ subsistence use: Sturgeon “has been forceful in his belief that Alaska Natives should have the rural subsistence fishing preference enforced in the Katie John line of cases. As a result, he has argued throughout this case that the courts can let him hunt with the hovercraft without disturbing Native subsistence fishing rights.”

2. Three Alaska Native organizations supported Sturgeon when his case first reached the Court four years ago. By contrast, this local Alaska publication states that “one Alaska Native group has raised concerns” with Murkowski about the Sturgeon case. So at the very least it appears that the Alaska Native views of the implications of the case are divided.

3. Murkowski herself submitted an amicus brief in support of Sturgeon in the earlier Supreme Court case. Indeed, she celebrated the interim victory that the unanimous Court gave Sturgeon as “a significant win for Alaska’s sovereignty.” She expressed concern that a ruling against Sturgeon would have been used by the federal government “as a springboard for extensive federal regulation which would have harmed hunters and stymied development on state and Native Corporation lands.”

Murkowski praised Sturgeon as “a hero for taking his challenge all the way to the Supreme Court and winning this initial, and unanimous, victory over a tortured legal interpretation by the National Park Service,” and she called the decision

only the start of the next chapter in our fight to secure the rights promised to Alaskans.  We must continue to rally behind John, and support his cause, until lower courts also recognize what the Supreme Court affirmed today: that Alaska is different, even exceptional, and that federal overreach is unacceptable.

Law & the Courts

Refuting Anti-Kavanaugh Smears—Pickering Nomination

Okay, now we’ve reached the bottom of the barrel, the fifth and last item that this Mother Jones article presents—and lots of folks on the Left mindlessly trumpet—as a supposed instance in which Judge Kavanaugh “appears to have lied to Congress while under oath.” Get ready: Mother Jones complains that Kavanaugh testified at his 2006 hearing that Charles Pickering “was not one of the judicial nominees that I was primarily handling.” According to Mother Jones, “new emails show [Kavanaugh] may have been more involved than he let on.”

David French and Carrie Severino demolished this charge a month ago, so I’ll be brief.

As I pointed out in my post on the Pryor nomination, Kavanaugh had explained at his 2004 hearing (and in post-hearing responses) that he had lead responsibility on some judicial nominations and that he “participated in discussions and meetings” on all others. So his testimony in 2006 that Pickering “was not one of the judicial nominees that I was primarily handling” (hearing transcript, p. 38) means that he did not have lead responsibility on that nomination. That is a fact that no one contests. Indeed, as David French reports, Pickering says he “cannot recall a single interaction with Brett Kavanaugh about my judicial nomination” and does “not even remember knowing his name at the time.”

Kavanaugh’s statement that he was not “primarily handling” the Pickering nomination implies nothing about whatever other participation he might have had in it. As David and Carrie discuss in extensive detail that I won’t repeat, the various minor actions reflected in the “new emails”—circulating articles, booking a conference room, responding to a request from the White House press office—are entirely compatible with the fact that someone else in the White House counsel’s office had the lead role on the Pickering nomination.

Law & the Courts

Refuting Anti-Kavanaugh Smears—Pryor Nomination

The fourth item in the Left’s litany of lies (as presented in this Mother Jones article) is the claim that Judge Kavanaugh testified untruthfully at his 2004 confirmation hearing about his role in the judicial nomination of William Pryor. In support of this charge, Senator Leahy contends that Kavanaugh “testified—repeatedly—that he ‘was not involved in handling his [Pryor’s] nomination.’” But it is Senator Leahy who is being deceptive—and outrageously so.

At his 2004 hearing (full transcript here), Kavanaugh testified that William Pryor “was not one of the people that was assigned to me” (p. 84). When asked whether he was “involved in any of the vetting” of Pryor, Kavanaugh stated “the way the work is divvied up, that wasn’t one of the ones I”—only to be interrupted before he could complete his explanation (p. 85). Far from denying any role in the Pryor nomination, Kavanaugh stated that he “might have attended a moot court session” (p. 85). Further, his statement that he would not “disclose internal discussions and deliberations” about the Pryor nomination (p. 86) clearly implies that he might have been involved in such discussions and deliberations.

In context, Kavanaugh’s statement that he “was not involved in handling” the Pryor nomination (p. 85) clearly means only that the Pryor nomination was not in his portfolio. That’s consistent with ordinary usage: Imagine a staff meeting in which someone asked, “Who’s handling the Pryor nomination?” You’d expect the person who had been “assigned” the nomination to answer.

If this weren’t already clear enough from Kavanaugh’s oral testimony, his response to a written question (part of the same hearing record, p. 94) dispels any possible doubt:

I was one of eight associate counsels in the White House Counsel’s office who participated in the judicial selection process. At Judge Gonzales’ direction, we divided up states for district court nominations, and we divided up appeals court nominations as vacancies arose. Our roles included discussions with staffs of home-State Senators and other state and local officials, review of candidates’ records, participation in candidate interviews (usually with Judge Gonzalez and/or his deputy and Department of Justice lawyers), and participation in meetings of the judicial selection committee chaired by Judge Gonzales. That committee would make recommendations and provide advice to the President. Throughout this process, we worked collaboratively with Department of Justice attorneys. It is fair to say that all of the attorneys in the White House Counsel’s office who worked on judges (usually ten lawyers) participated in discussions and meetings concerning all of the President’s judicial nominations.

So contrary to what Leahy and other Democrats are now suggesting, Kavanaugh never contended that he had no involvement at all on the Pryor nomination.

I’ll note further that when Kavanaugh had his second hearing on his D.C. Circuit nomination in May 2006 (transcript here), Senate Democrats were eager to do all they could to defeat his nomination. They asked many questions at that second hearing that followed up on matters at the first hearing, but no one suggested that his 2004 testimony regarding Pryor was internally inconsistent. That’s obviously because they recognized that, understood in context, his testimony that he “was not involved in handling” the Pryor nomination meant that he was not the White House lawyer with the lead responsibility for it, not that he played no role at all in it.

Law & the Courts

Refuting Anti-Kavanaugh Smears—Interrogation

Another item in the Left’s litany of lies is its claim that Brett Kavanaugh testified untruthfully at the 2006 hearing on his D.C. Circuit nomination in responding to a question from Senator Durbin about what he knew about an earlier judicial nominee’s “role in crafting the [George W. Bush] administration’s detention and interrogation policies.” This claim depends entirely on stripping Kavanaugh’s response out of context and on rejecting his very sensible account of what he was addressing.

Here is the relevant portion of the exchange between Durbin and Kavanaugh (p. 27 of transcript):

Senator DURBIN.… In September 2003, the President nominated William Haynes to be a judge on the Fourth Circuit. As General Counsel to the Department of Defense, Mr. Haynes had been the architect of the administration’s discredited detention and interrogation policies. For example, Mr. Haynes recommended that Secretary Rumsfeld approve the use of abusive interrogation techniques, like threatening detainees with dogs, forced nudity, and for forcing detainees into painful stress positions. During the 108th Congress, Mr. Haynes’s nomination stalled after his involvement in this scandal came to light. Just this February, the President decided to renominate him.

What was your role in the original Haynes nomination and decision to renominate him? And at the time of the nomination, what did you know about Mr. Haynes’s role in crafting the administration’s detention and interrogation policies?

Mr. KAVANAUGH. Senator, I did not—I was not involved and am not involved in the questions about the rules governing detention of combatants or—and so I do not have the involvement with that. And with respect to Mr. Haynes’s nomination, I’ve—I know Jim Haynes, but it was not one of the nominations that I handled. I handled a number of nominations in the Counsel’s Office. That was not one of the ones that I handled.

In context, it is eminently sensible, if not indeed incontestable, to read Durbin’s closing question “about Mr. Haynes’s role in crafting the administration’s detention and interrogation policies” in the context of Durbin’s set-up for that question: his condemnation of the “administration’s discredited detention and interrogation policies,” such as “the use of abusive interrogation techniques, like threatening detainees with dogs, forced nudity, and for forcing detainees into painful stress positions.” So when Kavanaugh stated that he was “not involved in the questions about the rules governing detention of combatants,” it ought to be evident (as it was to me when I wrote point 2 in this post a month ago) that he was referring to the “discredited” policies that Durbin was objecting to. (Had Durbin had any confusion on the matter, he could have followed up to clarify at the time.)

In his hearing last week, that is exactly what Kavanaugh explained—that he understood Durbin’s question in 2006 to be probing whether Kavanaugh “was involved in the program that two other nominees [Haynes and Jay Bybee] had been involved in,” concerning “enhanced interrogation techniques for the detainees.” For Kavanaugh could not have been expected to know who participated in the highly classified program unless he himself had been read into it.

It is undisputed that Kavanaugh was not read into the program that addressed enhanced interrogation techniques for the detainees and therefore had no involvement in the program. As this Washington Post article reports, former deputy White House counsel Tim Flanigan said that the program “was tightly ‘compartmentalized’ and that Kavanaugh was not authorized to know about it,” and a second official “confirmed Flanigan’s recollection.” Further, as Kavanaugh pointed out at the hearing, the exhaustive 500-page report on the program that the Senate Select Committee on Intelligence, under the direction of Senator Feinstein, issued in 2012, does not mention Kavanaugh’s name a single time.

In sum, Kavanaugh’s 2006 testimony on interrogation was entirely truthful.

Law & the Courts

This Day in Liberal Judicial Activism—September 12

Chief Justice John Roberts (Jonathan Ernst/Reuters)

2005—Supreme Court nominee John G. Roberts Jr. stoically endures the endless opening statements of Senate Judiciary Committee members as his confirmation hearing begins. Roberts manages to keep a straight face throughout, including when hard-left Senator Charles Schumer, who (along with Teddy Kennedy and Dick Durbin) voted against Roberts in committee on his D.C. Circuit nomination, tells Roberts what he must do to win Schumer’s vote and presents himself as arbiter of the legal “mainstream.”

2012—In a 112-page opinion (in Hedges v. Obama), federal district judge Katherine B. Forrest permanently enjoins the United States from enforcing a provision of the 2012 National Defense Authorization Act that she reads as broadly expanding the class of persons whom the president may detain as enemy combatants and as violating the First Amendment rights of the plaintiff journalists and activists who allege that they fear being detained.

Three weeks later, a liberal panel of the Second Circuit, calling into question Forrest’s analysis, will conclude that the public interest requires a stay of the injunction pending appeal. In July 2013, another liberal panel of the Second Circuit will vacate Forrest’s injunction on the ground that the plaintiffs lack standing to challenge the provision: The plaintiffs who are American citizens lack standing because the provision expressly has no bearing on them, and the non-citizen plaintiffs lack standing because “they have not established a basis for concluding that enforcement against them is even remotely likely.”

Law & the Courts

Judicial Nominations Update

Last week, the Senate Judiciary Committee held a hearing on Brett Kavanaugh, President Trump’s nominee to the Supreme Court.  Judge Kavanaugh is on the agenda for the Committee’s executive business meeting this Thursday, September 13th but it is almost a certainty that the Democratic minority will request to hold Kavanaugh’s nomination over an additional week, setting up a vote to advance Kavanaugh out of Committee on Thursday, September 20th.

In the midst of the Kavanaugh hearing last week, the Senate voted to confirm eight district court nominees.  This followed the confirmations of seven other district court nominees on August 28th immediately before the Senate’s Labor Day recess.  All but three of the 15 uncontroversial district judges were confirmed via voice vote. This is another significant step by Senate Majority Leader Mitch McConnell in working to clear the backlog of nominees pending on the Senate Floor.  This latest tranche brings the total number of federal judges confirmed to date to 68.

Here is this week’s update on federal judicial nominations:

Current and known future vacancies:  179

Supreme Court:  1

Courts of Appeals:  18

District/Specialty Courts*: 160

Pending nominees for current and known future vacancies:  78

Supreme Court: 1

Courts of Appeals:  10

District/Specialty Courts:  67

* Includes the Court of Federal Claims and the International Trade Court

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Nomination Date Days Pending Both Blue Slips Returned? Judiciary Committee Hearing Date
Paul Matey (3rd) 4/12/2018 152 No Not yet scheduled
Eric Murphy (6th) 6/18/2018 85 No Not yet scheduled
Chad Readler (6th) 6/18/2018 85 No Not yet scheduled
Eric Miller (9th) 7/19/2018 54 No Not yet scheduled
Bridget Shelton Bade (9th) 8/27/2018 15 No Not yet scheduled
Allison Jones Rushing (4th) 8/27/2018 15 Yes Not yet scheduled

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Nomination Date Days Pending Judiciary Committee Hearing Date
Ryan Nelson (9th) 5/15/2018 119 7/11/2018
Richard Sullivan (2nd) 5/7/2018 127 8/1/2018
Jonathan Kobes (8th) 6/11/2018 92 8/22/2018

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Pending Date Reported to Senate Floor
David Porter (3rd) 4/12/2018 152 7/19/2018

 Nominees Awaiting Floor Votes: 30

Courts of Appeals:  1

District/Specialty Courts:  29

Nominees Confirmed by the Senate: 68

Supreme Court: 1

Courts of Appeals: 26

District/Specialty Courts:  41

Law & the Courts

Refuting Anti-Kavanaugh Smears—NSA’s Warrantless Wiretapping Program

Let’s go the next item in the Left’s absurd litany of lies—the claim that Judge Kavanaugh testified untruthfully at the 2006 hearing on his D.C. Circuit nomination when he stated that he did not learn of the NSA’s warrantless wiretapping program, code-named Stellarwind, until the New York Times ran a story on it in December 2005.

Unlike the Manny Miranda controversy, which is sufficiently complicated that folks who aren’t paying attention might be a bit confused, this claim is patently ridiculous.

Here is Kavanaugh’s testimony on the matter at his 2006 hearing (pp. 42-43 of transcript):

Senator LEAHY. What was your reaction—as Staff Secretary, you see virtually every piece of paper that goes to the President; is that correct?

Mr. KAVANAUGH. On many issues, yes, Senator. Not everything, but on many issues.

Senator LEAHY. Did you see documents relating to the President’s NSA warrantless wiretapping program?

Mr. KAVANAUGH. Senator, I learned of that program when there was a New York Times story—reports of that program when there was a New York Times story that came over the wire, I think on a Thursday night in mid December of last year.

Senator LEAHY. You had not seen anything, or had you heard anything about it prior to the New York Times article?

Mr. KAVANAUGH. No.

Senator LEAHY. Nothing at all?

Mr. KAVANAUGH. Nothing at all.

As this New York Times article from last week makes clear, Leahy has zero evidence to contest Kavanaugh’s 2006 testimony that he had had no knowledge of the Stellarwind program. As former Obama administration official Neal Katyal has explained, “There is always a record of everyone read into highly classified SCI [sensitive compartmented information] programs and you even have to sign a ledger.” Per the NYT article, Kavanaugh was not read into the Stellarwind program, and, as Katyal points out, it would “be easy to verify” if he had been.

Leahy surely knows that Kavanaugh was not read into Stellarwind, and he did not contend otherwise at last week’s hearing. Rather, as the NYT article discusses, Leahy cited an email dated September 17, 2001—six days after the terrorist attacks—in which Kavanaugh inquired of DOJ lawyer John Yoo: “Any results yet on the 4A [Fourth Amendment] implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?” Kavanaugh explained to Leahy that “it was all hands on deck on all fronts” in “farming out assignments” in the immediate aftermath of 9/11 and that any such legal inquiry on September 17 was not conducted within the Stellarwind program (which, as the NYT article points out, wasn’t initiated until October 4, 2001).

In short, Kavanaugh’s 2006 testimony on this matter was entirely truthful, and Leahy’s effort to create a fog of confusion about it should not mislead anyone.

(I repeat that I have benefited from, and am drawing on, David Lat’s excellent tweet threads on these matters.)

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This Day in Liberal Judicial Activism—September 11

2017—In a New York Times interview just days after his retirement from the Seventh Circuit, Reagan appointee Richard A. Posner provides a candid description of his lawless “pragmatism”:

“I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

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