The Reality-Based Community

The intensity of the anger against the nomination of Brett Kavanaugh can be explained by a combination of several factors.

First, as I show in this chart, Republican Senators represent less than 44% of the population of the fifty states.  And, of course, those senators represent an even lower percentage of the U.S. population since neither Puerto Rico, with a population greater than twenty-one of those states, nor the District of Columbia, with a population greater than two of those states, have a vote in the U.S. Senate.  Thus, Senators representing well less than half of the U.S. population have denied to the Senate all of the relevant documents bearing on the nominee’s fitness for the Court, and, in addition, documents which may show that he lied under oath.  And, of course, their votes will be sufficient to confirm his nomination.

Second, as the most famous Op-Ed in history shows, the president who nominated Kavanaugh is incompetent.

Third, the president who nominated Kavanaugh has, in effect, been named as an unindicted co-conspirator in one federal criminal action and is the subject of at least one other criminal investigation.

Fourth, as Michael O’Hare shows in great detail, if Kavanaugh is confirmed:

[H]e will forever be “the guy Trump nominated to fend off his impeachment”; one of his senate interlocutors wisely said “you will always have an asterisk next to your name”, which is right except that the asterisk will be an indelible and devastating blot. No respectable judge or lawyer will be comfortable citing his decisions; his influence will be restricted to hacks and stooges, and he’s smart enough that he will eventually realize this, but alas, too late.

Finally, Kavanaugh is a threat to our most modern of liberties rooted in the decision in Griswold v. Connecticut, 381 US 479 (1965).  That case held that while the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy.  The decision overturned a Connecticut law that banned the use of any drug, medical device, or other instrument in furthering contraception.  From Griswold spring Roe v. Wade and Obergefell v. Hodges.

Now, you might think that, at the least, the precise holding of Griswold, namely that the right to contraception is Constitutionally protected, will never be attacked.  You would be wrong.  Certain forms of contraception such as the so-called “morning after” pill and the IUD, are already under attack.  A Justice Kavanaugh would surely allow such attacks to succeed since he doesn’t believe in the “penumbra” theory that underlies Griswold.

Let me be clear:  It is not the first, second, third, fourth, or fifth item on the list that stokes the anger against Kavanaugh’s nomination, even though any one of the five should be sufficient to deny him a seat on the Court.  The anger is a product of the outrage stemming from the cumulative effect of all five.

 

Here’s the sentencing memorandum submitted on behalf of George Papadopoulos.  One doesn’t know whether to laugh or cry:

Returning to Washington D.C., twenty-eight-year-old George witnessed his career skyrocketing to unimaginable heights. On March 31, 2016, he joined Mr. Trump, Senator Jeff Sessions, and other campaign officials for a “National Security Meeting” at the Trump Hotel. George’s photograph at this meeting flashed around the world via Twitter. Eager to show his value to the campaign, George announced at the meeting that he had connections that could facilitate a foreign policy meeting between Mr. Trump and Russian President Vladimir Putin. While some in the room rebuffed George’s offer, Mr. Trump nodded with approval and deferred to Mr. Sessions who appeared to like the idea and stated that the campaign should look into it.

George’s giddiness over Mr. Trump’s recognition was prominent during the days that followed the March 31, 2016 meeting. He had a sense of unbridled loyalty to the candidate and his campaign and set about trying to organize the meeting with President Putin.

H/T to the Lawfare Blog.

Apologies to Max Shulman.

I think that source documents are important. That’s why I’ve taken to posting here court opinions that are reported on in the press.

I’ve just stumbled upon a website that posts court documents in the Monsanto Roundup litigation, both the federal multidistrict litigation and the state litigation that resulted in a $287 Million verdict against Monsanto.  The site is maintained by U.S. Right to Know which describes itself as “a nonprofit organization working for transparency and accountability in our nation’s food system. We research what goes on behind the scenes in the food industry.”  It is, of course, an organization with a point of view.  However, the selection of the postings on the Roundup litigation do not appear to be biased and there is a broad selection of the filings from both sides.  For instance, the jury instructions requested by Monsanto in the state litigation are posted as are the daily trial transcripts.

A side note:  U.S. Right to Know is also transparent with regard to where its funding comes from and where how it spends its money.

 

So, a local government cooperates with ICE and subcontracts with a private prison company to detain immigrant families.  What could go wrong.

Well, for one thing sub-par care of a two-year that results in her death.  From the notice of the claim:

On March 1, 2018, Ms. Juárez, a citizen of Guatemala, and her then-19-month-old daughter, Mariee, crossed the Rio Grande into southern Texas. Ms. Juárez feared for her and Mariee’s lives and safety in Guatemala, and they had fled to seek asylum in the United States. On their apprehension near the border, mother and daughter were temporarily detained at a U.S. Customs and Border Patrol immigration processing center, then transferred together to the South Texas Family Residential Center at Dilley, Texas (“Dilley”), four days later.

Mariee was a normal, healthy, happy child when she arrived in the United States.  She had never had any significant medical problems or chronic medical conditions. The medical personnel who processed Mariee for intake at Dilley on March 5, 2018, also noted no current illnesses or health problems before clearing her for custody.

At Dilley, Ms. Juárez and Mariee were assigned to a single room with five other mothers, each with a child. Several children were ill. One boy, who was around Mariee’s age, had a constant cough and runny nose, and was very lethargic. Ms. Juárez learned from the boy’s mother that he had fallen ill at Dilley. His mother had sought medical attention for her son, taking him to the clinic very early in the morning, but the two were sent back to the housing area without being seen at that time.

Ultimately, the mother and daughter were released and sent to New York via New Jersey.  Here’s what happened when they reached New Jersey.

By the time mother and daughter arrived in New Jersey after midnight, early in the morning of March 26, 2018, Mariee’s condition was dire. Hours later, after sunrise on March 26, Ms. Juárez took Mariee to a pediatrician, who said that Mariee’s lungs had stiffened and that she was having difficulty breathing. After four hours of trying various treatments to get Mariee’s lungs to open up, Ms. Juárez and Mariee were sent home with additional medications and instructions to seek emergency medical attention if Mariee’s condition deteriorated further.

But by then it was too late. Hours later, on the evening of March 26, Mariee was admitted to the emergency room, where she presented in acute respiratory distress with a critically low blood oxygen level of 85%, requiring continuous supplemental oxygen. Shortly after admission, Mariee was moved to the Special Care Unit with a diagnosis of viral bronchiolitis versus pneumonia. She tested positive for adenovirus and parainfluenza 3. Over the next six weeks, Mariee was transferred to two different hospitals for increasingly specialized care due to her progressive respiratory failure, requiring a ventilator and later an advanced life support device (ECMO) used in dire situations.

Mariee’s condition steadily worsened, and she died on May 10, 2018, following a catastrophic intrathoracic hemorrhage that resulted in irreversible brain and organ damage with no hope of survival. The cause of death was identified as bronchiectasis, pulmonitis, and pneumothorax (collapsed lung).

This is what happens when a nation falls prey to a demagogue.

 

The U.S.D.C. for the District of Montana (per Christensen, C.J.) issued a temporary restraining order blocking the hunting of the  Greater Yellowstone Ecosystem Grizzly bear.  The case is entitled Crow Indian Tribe v. U.S.

Significantly, the Court’s order noted:

Here, the Court finds that the Plaintiffs’ arguments raise “serious questions going to the merits.” At minimum, the current issue is close to that recently presented in Humane Society of the United States v. Zinke, 865 F.3d 585 (D.C. Cir. 2017), in which the D.C. Circuit Court of Appeals held that Fish and Wildlife Service violated the Administrative Procedure Act and the ESA when it isolated and delisted a distinct population segment without considering the legal and functional impact on the remainder of the species.

Judge Peter Mesitte of the U.S.D.C. for the District of Maryland explains what the emolument provisions of the U.S. Constitution mean.  He did so in an opinion denying a motion to dismiss the complaint filed by the District of Columbia and the state of Maryland against Donald Trump individually and in his capacity as President of the United States.

Yesterday, the Inspector General of the GAO issued a report concerning the involvement of the White House in the process of determining where the new FBI building would be placed.  There was an extreme amount of pressure, even rising to the level of two Oval Office meetings with Trump, to replace the current FBI building rather than to sell the site and create a unified FBI campus in Maryland or Virginia.  In that regard, two points are relevant: (i) the “campus” replacement concept is more efficient and less expensive, but (ii) putting the building in the same spot as the current building would place it nearby the Trump Hotel.  Since the “campus” proposal would involve selling the current FBI site, it could open the site for a competitor to the Trump Hotel.

Do you want me to explain the purpose behind the two emolument provisions or can you figure that out for yourself?

I have uploaded the opinion in the case of Common Cause v. Rucho, the case in which a three judge federal panel held that the gerrymandered Congressional districts in North Carolina were unconstitutional.

The Trump Administration sought to undermine the Federal Service Labor-Management Relations Act (“the FSLMRS”) by issuing executive orders that:

[Placed] limits on the activities that federal employees may engage in when acting as labor representatives; guide[d] agencies toward particular negotiating positions during the collective bargaining process; and address[ed] the approaches agencies shall follow when disciplining or evaluating employees working within the civil service.

The United States District Court for D.C. (per Jackson) held that these executive orders were illegal and enjoined their enforcement.