The View from Right Field

Brett Kavanaugh: Thoughts on a Story That May Never End

While Brett Kavanaugh has been confirmed as a justice on the Supreme Court, one assumes the controversy over his nomination will go on for a long time (forever-?), so it is probably not too late for me to make a few comments.

First, there is the question of whether we must automatically “Believe Women,” as a full-page ad said in The Wall Street Journal (and probably lots of other papers).¹  With respect to this question, Megan McArdle’s column in The Washington Post on Susan Collins’s vote on now-Justice Kavanaugh’s confirmation, talked about some things I hadn’t thought of before:

“Women know, in a visceral way that men never can, what it is like to live your life in consciousness of a single, inescapable fact: that virtually every man you meet is capable of physically overpowering you and taking what you won’t give them freely. We also know that if some man attacks us, it is likely to be in a private place, with no witnesses, and that the physical evidence will often be little different from the aftermath of consensual sex.

Kavanaugh, Clinton, and Kennedy

Let me see if I understand the view that some people have.  It didn’t matter what Bill Clinton was accused of doing when he was Attorney General and Governor of Arkansas.  It didn’t matter what Teddy Kennedy did when he was Senator from Massachusetts.  But it is absolutely critical what Brett Kavanaugh is alleged to have done when he was a teenager in high school and college.

Brett Kavanaugh and His Accuser

Several comments on the Brett Kavanaugh controversy:

1.  Almost regardless of what happens after this point, both Judge Kavanaugh and his accuser, whose name does not need to be repeated here, will, for the rest of their lives, be identified with this moment. One of them correctly and one of them, possibly, wrongly. 

2.  The Washington Post says that its article, etc., were not done “at the eleventh hour” because it was only last week that the accuser was willing to have her name mentioned publicly. I wonder whether that means the Post would not have published this accusation if the accuser had not been willing to identified by name.

Brett Kavanaugh, the Supreme Court, and Roe v. Wade

With the hearings on Judge Brett Kavanaugh’s nomination to the Supreme Court starting,¹ one of the questions will be about women’s right to choose/abortion.  Will a Justice Brett Kavanaugh vote to take away a woman’s right to choose by overturning Roe v. Wade?  While Judge Kavanaugh told Senator Susan Collins that Roe v. Wade was settled law, settled law can be overturned. 

What people are missing, however, in talking about whether the Supreme Court might overturn Roe v. Wade, is that overturning Roe v. Wade is not going to take away a woman’s right to choose.  The Equal Rights Amendment was never adopted, but over the last 30+ years all, or at least almost all, of what the Equal Rights Amendment was supposed to accomplish has happened anyway.  It has been done by laws, regulations, and the general agreement of society.  Women are heads of Fortune 500 companies.  Female soldiers are going into combat as members of our military.  Women are as equal today as they would have been if the Equal Rights Amendment had been adopted 35 years ago.

Is Judge Brett Kavanaugh Anti-EPA or Just Pro-Proper Process?

Environmentalists are worried about Judge Brett Kavanaugh, Donald Trump’s nominee for the Supreme Court.  According to David Savage of the Los Angeles Times, “Environmentalists fear that if Kavanaugh joins the court, he would vote to block anti-pollution regulations for decades, long after President Trump has departed.”  Pat Gallagher, legal director for the Sierra Club, goes perhaps further:

“He would be a disaster for the environment.  He has a disdain for regulation, particularly from the EPA.  Kennedy was the swing vote in this area.  If we have to wait for Congress to act on climate change, we are doomed.”

The last sentence gives the story away.  Environmentalists haven’t been able to convince Congress to pass the legislation they think is necessary so they have been relying, during the Obama administration, on federal agencies, especially the EPA, to do what they want.  What environmentalists don’t like about Judge Kavanaugh is that he has been skeptical of federal agencies doing things that are arguably beyond what Congress has authorized them to do and that, ultimately, he is unwilling to let policy ends prevail over the means of proper process.

The Retirement of Anthony Kennedy – And What Might Have Been

It is interesting how things turn out.  With Justice Kennedy retiring, President Trump has a chance to nominate a replacement, assuming he can find one acceptable to all 50 Republican senators¹ and Majority Leader Mitch McConnell can get the nomination through the Senate this fall.  How much better it might have been for the Democrats if, back in 1986, Teddy Kennedy had not “borked” the nomination of Robert Bork to replace Justice Lewis Powell, who was then retiring.  Robert Bork died in December of 2012, and if he had been on the Court (and not Justice Kennedy), President Obama would have been able to nominate a replacement.  Instead, President Reagan nominated Anthony Kennedy.  And now President Trump has the opportunity to nominate his replacement.
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¹ With John McCain being ill, the number of Republicans is effectively down to 50.

Don’t “Kill Quill”. It’s a Question of Following Proper Procedures.

The United States Supreme Court heard arguments yesterday in South Dakota v. Wayfair, a case involving the question of whether a state can require a retailer to collect its sales tax even if that retailer does not have a physical presence in the state.  The Supreme Court decided this issue 25 years ago in Quill Corp. v. North Dakota (there must be something about the Dakotas).  In Quill, the Court said a state cannot force a retailer to collect its sales tax without a physical presence in the state – unless if Congress allows it.  Under the Constitution, Congress can authorize such taxes, but since Congress hadn’t authorized them, states couldn’t collect them.

Several years ago, however, Justice Kennedy gave a hint that perhaps Quill should be revisited, so North Dakota’s neighbor to the south was in the Supreme Court yesterday.  With the case before the Supreme Court, there was an article in The Wall Street Journal about the problems small companies and individuals would have trying to collect and process sales taxes in all of the states.  And it’s not just states that have sales taxes.  Cities and counties have them, too, with different rates in each.  What about audits?  Can a small business handle dozens of audits, some of them thousands of miles away?  Should the size of the business matter?

Is Partisan Gerrymandering an Issue for the Courts?

Partisan gerrymandering is one of the big issues before the U.S. Supreme Court this term.  The question is whether gerrymandering, which has been going on for 200 years, has become so extreme that the courts should, and can, do something about it.  Those urging the Court to act argue that computer technology is allowing ever more precise gerrymandering, which is locking in legislative majorities for one party, regardless of what the voters want.

Last October, the Supreme Court heard arguments in a case brought by Democrats in Wisconsin, Gill v. Whitford, challenging an allegedly partisan gerrymandering plan of the Wisconsin state legislature.  The Wisconsin Democrats complained that, because of the way the Republicans drew the district lines after the 2010 census, Republicans were able to win 60 of the 99 seats in the State Assembly in 2012 even though Republican candidates won 47% of the total votes for State Assembly candidates. 

Why Is Amazon Considering Chicago?

Most of the articles asking why Amazon would consider Chicago as a location for its second headquarters¹ have focused on the sorry state of Illinois’s budget woes and unfunded pension liabilities, the inability of Republicans and Democrats to work to together in Springfield,² Chicago’s own budget problems and unfunded pensions, the increases in taxes that will have to happen to pay for all these things, and so on.

I am sure Amazon is thinking about more than government finances, however.  There is also how it would be for their employees to live in the new location.  Chicago’s supporters say this plays right into Chicago’s strengths.  Culture, art museums, parks, sports teams, etc.  Schools might be a different story.  And the weather isn’t something to brag about at certain times of the year.

Clarence Thomas and Anita Hill – Yet Again

Jay Kaganoff argues, as stated in the headline of his op-ed in the December 8, 2017 Chicago Tribune, “Fellow conservatives, it’s time to call on Clarence Thomas to resign.”  Like Mr. Kaganoff, I do not know for certain what Justice Thomas said to Anita Hill or what she heard him say to her.

Mr. Kaganoff, however, “knows” that truth is on the side of now-Professor Hill.  Mr. Kaganoff argues, in effect, that Professor Hill had no reason to lie.  Unfortunately, we have had too many cases where people lied about sexual harassment even though they seemed to have no reason to do so.