Im-Politic: Why Illegal Aliens Feel So Entitled

Tags

Constitution, Equal Protection Clause, Fourteenth Amendment, ignorance of the law, illegal aliens, Im-Politic, immigrants, Immigration, Supreme Court

At first glance, Thursday’s Supreme Court decision holding that an illegal alien couldn’t be convicted for possessing a firearm because he didn’t understand his status looks like the height of illegals’ coddling at the expense of common sense – not to mention obvious public safety considerations, and the legal principle that “ignorance of the law is no excuse” for violating it.

In fact, although the 7-2 ruling is defensible on the narrowest possible legal grounds (grounds that are entirely legitimate and time-honored bases for Court decisions, especially for believers in what’s known as the doctrine of judicial restraint), it reveals something at least as disturbing: how thoroughly and dangerously recent decades of lax pre-Trump immigration policies have fostered a sense of entitlement among illegals. And only slightly less disturbing: The law itself that’s in question contains its own evidence of illegal aliens coddling.

The majority’s opinion turned on the specific question of whether a law barring illegal aliens from owning firearms permits conviction only if the defendant “knowingly” violates the statute. Although this conclusion seems to overlook completely the venerable “ignorance of the law” maxim, as the majority importantly reminds, this principle (like most others worth following) isn’t absolute. I also find convincing the argument that the statute’s wording makes clear that, in this particular case, lawmakers intended the “knowingly” criteria to apply to illegal aliens’ awareness of their immigration status under the law.

But at this point, I get off the boat policy-wise. Because how on earth does any illegal alien in the United States who can pass a sanity test get the idea that he can live his or her life without being acutely aware of their immigration status? Similarly, why did the defendant believe that he had just as much of a right to own a (substantially regulated) deadly weapon as any legal American resident? Especially when he had just been told that his legal immigration status was hanging by a threat – at best. And if you think that the second and third questions are exaggerations, get a load of this description (from the dissenting opinion) of the defendant’s actions after the college he was enrolled him told him by email that, because of poor academic performance, “he was no longer enrolled and that, unless he was admitted elsewhere, his status as a lawful alien would be terminated”:

“Petitioner’s response was to move to a hotel and frequent a firing range. Each evening he checked into the hotel and always demanded a room on the eighth floor facing the airport. Each morning he checked out and paid his bill with cash, spending a total of more than $11,000. This went on for 53 days.”

To me, the answer obviously is that for so long it has been so easy to enter the United States illegally, and for legal entrants to stay once their visas have expired, that many believe that they have every right to be in the country and to be treated exactly like legal residents and citizens.

In some instances, they’re correct. Principally, the Supreme Court has ruled that the Equal Protection Clause of the Constitution’s Fourteenth Amendment means that everyone in the United States at any given moment, no matter what the conditions, is entitled to the full range of protections offered by U.S. law. But these convictions also frequently extend to assumptions that illegals are also due any number of welfare state benefits, privileges like drivers’ licenses, and even the right to vote.  And of course, these assumptions have constantly be aided and abetted – and often created by – Open Borders-oriented illegal aliens’ advocacy groups and even state and local governments.

It’s equally obvious that the federal gun ownership law (which is found starting on p. 13 of the opinion linked above), unwittingly or not, betrays the illegals-coddling mindset mentioned above. After all, why specify that illegals need to violate the statute “knowingly.” They’re not supposed to be here in the first place. Systematic knowledge about them is lacking – including criminal records in their home countries. Why should they be granted any right to possess a gun under any circumstances?

So it’s clearly time to rewrite the law – especially since the “knowingly” standard is even more absurd for many other categories of individuals it denies gun ownership, like “fugitives from justice” and recipients of court orders restraining them from harming or harassing their “intimate partners” and the children thereof.

After all, one of the clearest lessons about immigration policies taught over the decades since the 1986 amnesty is that the messages sent by Washington’s words and deeds greatly influence foreigners’ willingness to enter the United States illegally. If a reasonable degree of control over U.S. borders is to be reestablished, it’s time to send out a new one: From now on, within the legal bounds set by the Equal Protection Clause, American law is going to start making it harder for illegal aliens to behave in ways that endanger citizens and other legal residents, not easier.

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Im-Politic: On a Parkland Applicant, Harvard Flunks the Character Test

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adolescents, character, college admissions, colleges, Earl Warren, Florida, forgiveness, gun violence, Harvard University, higher education, Hugo Black, Im-Politic, Japanese internment, Ku Kux Klan, Kyle Kashuv, Parkland, racism, school shootings, Supreme Court, universities, World War II

The more I read and think about Harvard University’s decision to rescind admission to Kyle Kashuv because this survivor of the Parkland, Florida high school mass shooting last year made a variety of racist and other offensive and bigoted remarks in a digital document two years ago, when he was all of sixteen years old, the more outraged I get. And the more convinced I become that Harvard pounced upon an excuse to respond to pressure to punish Kashuv for refusal to jump aboard the gun control bandwagon.

Let’s get one aspect of this incident clear right away. Kashuv’s remarks were genuinely appalling. But for any fair-minded observer, the mitigating factors are overwhelming. He was in mid-adolescence – when even good kids often get tempted to do and say lots of stupid and even cruel things. His remarks were so loopy that they even included anti-semitic slurs – even though Kashuv is Jewish. They were made in private digital communications to a handful of apparently equally stupid friends and other schoolmates – i.e. no one has ever accused him of voicing such sentiments in public, an act that would create actual victims. He has admitted responsibility and apologized profusely. Further, nothing known about him so far – and clearly, folks have been looking, since he was outed by a fellow Marjory Stoneham Douglas student who apparently opposed his views on guns – indicates that these remarks ever reflected his actual views, much less do so now.

In fact, overall, Kashuv’s behavior has been far more honorable than Harvard’s handling of his character issues. To its credit, the university first responded to “media reports discussing offensive statements allegedly authored” by Kashuv by noting the morals clause that’s one of its admissions considerations and asking for “a full accounting” so that the matter could be “considered.” (The best source for these and the following Kashuv and Harvard statements is Kashuv’s Twitter feed:  @KyleKashuv.   

But Harvard’s professed open-mindedness was actually a sham, as is clear from its June 3 letter to Kishuv following his apology and explanation, and rejecting his appeal. The admissions dean William R. Fitzsimmons told Kashuv that he and his colleagues “appreciated [his] candor and…expressions of regret” and “discussed [them] at length.” And they bounced him anyway.

It’s disturbing enough that Harvard refused to accept a lengthy apology for a 16-year old’s misdeeds, an equally lengthy promise to learn and grow, and evidence of actually acting on this promise (in the form of reaching out to the university’s diversity office for guidance and counseling). At least as disturbing is seeing this inflexibility at an educational institution – which presumably is in the business of human improvement and focuses on teenagers, who surely represent many of the most improvable individuals on the planet.

As Kashuv himself has wisely noted, Harvard’s actions also raise broad moral questions about whether “we live in a society in which forgiveness is possible or mistake brand you as irredeemable.” I’d add that the odds of making offensive comments in particular have risen dramatically in recent years, since the amped up coarsening of culture and society is bound to trickle (and even flood) down to the young. Moreover, given how unpopular his guns views tend to be in the left-leaning political cultures on so many college campuses, and especially at so-called elite institutions like Harvard, the school’s treatment of Kashuv reeks of a politicized admissions process.

At the same time, the potential practical consequences of such gun jumping (no pun intended) should be sobering. I’m thinking in particular of Hugo Black. This mid-twentieth century Supreme Court Justice belonged to the Ku Kux Klan as a young adult. He was never especially apologetic, either. But on the High Court, he became one of its staunchest proponents of racial integration and a singular champion of free speech and other individual liberties – for Americans regardless of color.

And don’t forget Earl Warren, Chief Justice of the Court during much of Black’s tenure. As Attorney General and Governor of California during World War II, he was instrumental in carrying out the federal policy of indiscriminately throwing Japanese-Americans into internment camps solely because of their race or ethnicity. Not until his memoirs were published posthumously is there any public record of regret for these actions. Yet as Chief Justice, he became an even more powerful force than Black for racial justice and civil liberties.

The main – and screamingly obvious lessons – it seems to me are:

First, people can evolve even as adults, much less from their childhood and adolescent selves.

Second, the case for affording the benefit of the doubt, especially when the offender is young, and forgiveness is sought, is impressive.

And third, to understand these truths, you sure don’t need a Harvard education.

Im-Politic: Why the Crucial Abortion Debates are (Long) Over

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abortion, abortion rights, Constitution, Gallup, heartbeat bills, Im-Politic, Kaiser Family Foundation, National Opinion Research Center, Pew Research Center, Planned Parenthood of Southeastern Pennsylvania v. Casey, Quinnipiac College poll, Robert G. McCloskey, Roe vs. Wade, Supreme Court

If only most of the major challenges facing Americans were as easy to meet as arriving at a satisfactory compromise over abortion. In fact, in the key respects, the challenge has already been met, as a general consensus is staring the nation in its collective face, has been in place literally for decades, and looks guaranteed to remain solidly in place for the foreseeable future.

Sounds crazy, doesn’t it, given the political and policy brawl that has erupted in recent weeks over a handful of states’ approval of laws dramatically reducing the circumstances in which abortion will remain legal?  But this contention is backed up strongly by the national legal regime regulating abortion right now, by all the polling, and by everything known about how the Supreme Court – which it’s thought on both sides of the issue could well transform the status quo it’s created since its 1973 Roe v. Wade decision – historically has handled such explosive questions. Moreover, abortion is one of those matters in which the politics, the law, and the history powerfully reinforce each other.

Let’s start with the law. The major Supreme Court decisions are of course the Roe case – which established a Constitutional right to abortion but also authorized states to infringe on it in various ways during a pregnancy’s second and third trimesters – but also a ruling in the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey case. In it, a 5-4 majority of the Court created a standard to govern such state restrictions on abortion, holding that such measures could not impose an “undue burden” on women seeking abortions that “created a substantial obstacle” to undergoing the procedure “before the fetus attains viability.”

Revealingly, that guideline nicely describes the current U.S. consensus on abortion rights: Women deserve a fundamental right to abortion, but (like most other rights), it’s not absolute. More specifically, the most widely agreed on exceptions involve what are clearly exceptional (and exceptionally tragic) – mainly rape, incest, serious threats to the pregnant woman’s health, and a high likelihood that the new baby would suffer from serious defects. (See this recent Gallup summary for some representative data.)

Still more revealingly: These public attitudes have been remarkably stable over time. At least three separate polls – shown in the aforementioned Gallup summary, by Pew, and by the National Opinion Research Center (NORC) – make this point emphatically.

And at least as important – NORC’s findings show that a sizable gap has existed between public support for the “tragic” exceptions to the right to abortion on the one hand (which have demonstrated at least 70 percent backing for the four decades examined), and other proposed exceptions (whose support generally has remained between 30 percent and 50 percent).

In turn, these legal and political considerations both create towering obstacles even to a Court now featuring a conservative majority overturning either the Roe or the Casey regimes. And least plausible of all is the wish-dream of abortion rights opponents and the nightmare of abortion rights supporters – that the Court bases such a reversal on cases brought deliberately in order to uphold the highly restrictive new state laws. For outlawing abortion even in the aftermath of rape and incest, for example, would seem the epitome of creating a Casey-violating undue burden on the fundamental right to abortion. The various “heartbeat” bills for their part can’t be squared with the Court’s determination in Roe and other decisions since that a fetus isn’t viable until long after the six weeks at which this function can first be detected.

Indeed, such laws repeatedly have been struck down in various courts, and the Supreme Court has refused to consider the two that reached it on appeal. And don’t think it’s a coincidence that the high court’s recent record tracks well with public opinion (including on the heartbeat bills, according to Kaiser Family Foundation and Quinnipiac University survey results presented in this sweeping summary of decades of abortion poll findings).

But couldn’t the Supreme Court’s new conservative majority decide the time is ripe to get rid of Roe and follow-on decisions? Not if it bears any resemblance to its predecessors since the New Deal era. For one of the seminal findings about the Court came back in 1960, in Harvard political scientist Robert G. McCloskey’s classic study, The American Supreme Court. As McCloskey argued compellingly, the Court is most successful when it pays attention to public opinion, and runs into its greatest troubles when it gets too far ahead of or too far behind these attitudes. If you’re skeptical, just think of the tumult that followed the pre-Civil War Dred Scott case and its invalidation of crucial pieces of New Deal legislation during the Great Depression.

None of this is to say that lots of thorny abortion-related decisions will continue to face Americans – like federal funding for Planned Parenthood and other organizations that provide a wide range of women’s health care services, including abortion services; and about what kinds of reproductive health services like birth control religious organizations should be required to provide for female employees in their health insurance plans. And few of them have generated enough polling evidence to identify consensus with any justifiable confidence.

But the broadest, most important abortion-related questions have been decided – especially in the court of public opinion. The procedure will remain a strongly protected Constitutional right early in pregnancy, and a more weakly protected right in later phases. Throughout pregnancies, this right will receive virtually absolute protection in genuinely traumatic circumstances, and be subjected by states to curbs on its availability that don’t “substantially” nullify it in practical terms — and that therefore should not be reflexively condemned as stepping stones to wide-ranging bans.

So abortion rights supporters need to give up on extending strong protections deep into pregnancy. And abortion rights opponents should forget about overturning Roe and Casey. It’s true that medical advances that keep pushing fetal survivability (if not viability without pervasive support) back closer to conception will one day resume adding fuel to the abortion debate fire. And public opinion is by no means set in stone. But for more than forty years since Roe, Americans collectively have been saying that the general abortion debate is over, and the courts have plainly agreed. It’s high time that politicians and activists across the spectrum got the message.

Im-Politic: The Politics of Kavanaugh

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1968 election, 1972 election, 2018 elections, Democrats, George S. McGovern, Im-Politic, Kavanaugh, midterm elections, protesters, Republicans, Richard M. Nixon, Supreme Court, Trump, Vietnam War

Although Brett Kavanaugh has now won confirmation to the Supreme Court, the fallout will resonate for months – and likely longer (even if he does follow my advice and withdraw between now and his swearing in). So some final (for now) thoughts on this debacle:

Principally, at this point it looks like President Trump’s instincts on the politics of the Kavanaugh nomination were better than mine. I feared that sticking with Kavanaugh would accomplish less in firing up the Trump-Republican base (by now, they’re almost identical) than it would harm the GOP’s chances in numerous upcoming midterm elections by alienating and downright antagonizing moderate Republicans (especially upper middle-class women) and independents (of all genders).

The main evidence that Trump – and Kavanaugh stalwarts – were right politically? Polls showing a closing of the so-called enthusiasm gap for these midterms, between Republicans and Democrats – widely seen as a good predictor of voter turnout –  has narrowed in favor of the Republicans. But there’s a twist here: as stated by Senate Majority Leader Mitch McConnell this afternoon, the gap closing was mainly a gift from the Democrats, and the die-hard Kavanaugh opponents comprising a big part of their base. That their hysteria and extreme tactics have undoubtedly turned off many voters in the center looks clear from the recent shift in public opinion in support of the Kavanaugh bid. In fact, I have no doubt that videos of the anti-Kavanaugh protests will be a gift that keeps on giving to Republican candidates from now through election day, in the form of countless campaign ads that will feature them.

Come to think of it, I suspect that the Kavanaugh protests have backfired in the way that comparably angry protests unwittingly sabotaged the anti-Vietnam War movement decades ago. This journal article does an excellent job of showing that the polling data from the late-1960s and early 1970s – when U.S. military involvement in Southeast Asia expanded dramatically, and dissent became more strident and sometimes violent – can support several different interpretations, no doubt because public opinion was understandably confused by this then-unprecedented type of conflict.

But one legitimate interpretation of the findings is that public opinion would have turned against the war much faster had so many Americans, rightly or wrongly, not found the protests and the protesters themselves to be so offensive in so many ways. Surely that’s why the winner of the 1968 presidential election was not a dove, but Richard M. Nixon. His emphasis of his unhappiness with the Johnson Administration’s supposedly muddled approach to the war and strong suggestion that he would break the emerging stalemate in various (often not mutually consistent) ways closely approximated the views of a critical mass of the public.

And just as surely that’s why (along with dramatically declining casualty rates) Nixon was reelected in a landslide over Democrat George S. McGovern, who Republicans portrayed as the champion of “acid, amnesty [for draft-dodgers], and abortion.”

A “Blue Wave” could still wash over Congress this November, but at this point, it’s also entirely possible that on “the morning after,” the big questions dominating American politics will concern whether the Democrats will recognize their Kavanaugh overreach, and whether they can (or want to) start presenting a more appealing face to the electorate over the next two years.

At the same time, the big qualifier remains fully in tact – whether, between now and then, President Trump will finally cross a line that will convince voters that he and his Republican Congressional and gubernatorial supporters truly are unfit for office, and must be thrown out at the next possible opportunity. But if the President’s many disruptive words and even deeds haven’t produced these results so far, this hope looks like an increasingly slim reed on which to hang political success.

Im-Politic: Why Senate Dems Should be Ashamed…& Kavanaugh Should Go

Tags

Brett Kavanaugh, Christine Blasey Ford, Deborah Ramirez, Democrats, FBI, Im-Politic, Jeff Flake, Julie Swetnick, Mark Judge, Republicans, Senate Judiciary Committee, sexual assault, Supreme Court, Trump

Thanks to Jeff Flake, I get to write about the Kavanaugh firestorm again well before I wanted to. On Friday, for readers leading hermitic lives, the retiring Arizona Senator and Republican member of the Judiciary Committee announced his conditional decision to support the nomination of Brett Kavanaugh to the Supreme Court. The result was Committee approval, but only pending the findings of a week-long FBI probe of one and possibly two of the sexual misconduct charges leveled against the federal judge.

This compromise leaves me more convinced than ever that, as I first posted on September 19, the only solution to the Kavanaugh uproar consistent with American democratic values and procedures is a political solution. In other words, because it will not be possible to determine Kavanaugh’s guilt or innocence with a degree of confidence that would satisfy any (remaining!) open-minded observers, a decision needs to be made by Senators with the information they already have at hand – and thereby forcing them to face whatever political consequences result.

At the same time, the weight of the evidence now tells me that, for the good of the country, the least worst of a series of remaining alternatives that are absolutely terrible is that someone other than Kavanaugh fill the Court seat that’s currently open.

Regarding the FBI probe, I have no objection to the kind of short investigation by the Bureau of the Kavanaugh allegations successfully demanded by Senate Democrats. But the the chances of conclusively establishing the decisive facts seem slim at best. For example, it’s not possible to demonstrate Kavanaugh’s innocence versus Christine Blasey Ford’s charges without hard evidence (e.g., a photograph, some contemporaneous restaurant or store receipt) showing Kavanaugh’s location the night of the assault because Ford does not remember which night it was. That’s not a criticism of her; it’s simply a fact that unavoidably complicates such matters.

In principle, Mark Judge, the Kavanaugh friend that Ford claims was the third person in the room during the assault, could change his story and attest to her claims about the judge’s behavior. But simply since such an about-face would expose Judge to legal jeopardy, how plausible is that scenario? Similar problems could face the other party attendees identified by Ford if they changed their varying claims of ignorance of the alleged incident. And even in the absence of prosecution, how credible would such actions leave them in the court of public opinion?

There are two other big potential problems with an FBI investigation – long or short. First, it wouldn’t take place in a vacuum. Interviewees of both Kavanaugh and Ford would have plenty of context – and therefore plenty of incentive to offer claims of all kinds expressly intended to support or discredit either one. And although lying to the FBI is often a criminal act, it doesn’t take an especially active imagination – especially in the current, politically charged atmosphere – to think of many statements that would be impossible to prove or disprove. Nor is it remotely difficult to believe that all manner of Kavanaugh accusers would suddenly emerge, especially since the Bureau accepts anonymous information.

Second, how out of character would it be for Kavanaugh opponents to complain, despite agreeing with the time frame, that it was inadequate after all? That all possible and even likely leads hadn’t been run down? That new witnesses need to appear in public before the full Committee after all? (P.S. – even though Judge has given a sworn statement, since he is the only eyewitness identified by Ford other than Kavanaugh, and as a result is in a class by himself when it comes to her accusations, I believe he should have been subpoenaed last week).

Many Kavanaugh opponents contend that the charges leveled by Deborah Ramirez and Julie Swetnick merit an investigation, too. The former’s lawyer has confirmed that the FBI has contacted his client about her allegation that  Kavanaugh shoved his genitals into her face at an alcohol-drenched gathering both attended as Yale University freshmen. I explained on Wednesday why I regard Ramirez’ case as significantly weaker than Ford’s. 

As for Swetnick, even disregarding new evidence of serious challenges her own credibility would face (see, notably, here and here), the more I think about her story, the less plausible it seems – even though her statement is sworn as well, and exposes her to prosecution if challenged. Principally, it appears profoundly improbable that the kind of regular mass rape activity she depicts could have been kept so secret for so long, especially among the families of affluent DC-area private school students who, as I know from first-hand observation, genuinely do comprise a series of very close-knit communities. Therefore, it’s at least as improbable that Kavanaugh’s involvement would have escaped the FBI’s notice during the background checks it’s conducted in connection with his several government appointments. (By contrast, it is entirely plausible that the type of incident Ford has described could be kept secret. After all, she’s not claiming any repeats, and the number of attendees at that single gathering was much smaller.) 

In fact, partly for that reason, Ford’s case is looking stronger to me all the time. It’s clear to me, anyway, that the Democrats (including her lawyers) are shamefully exploiting her situation. It’s equally clear that they’re playing for time, in hopes that they’ll win back control of the Senate and thus gain the ability to block any Trump judicial nominees of any kind. In particular, it’s clear that the Democrats only decided to leak Ford’s name to the press – and thereby enhance the credibility of her story – only after they became convinced that Kavanaugh was headed for Committee and then Senate approval.

But, as I explained last Saturday, none of those considerations invalidate her claims. Nor, in this vein, can I identify any realistic motive for her to be lying. Even if she’s a fanatic Democrat or progressive, her actions have unmistakably subjected her and her family to the ugliest and most fearful kinds of hounding and harassment – harassment that nowadays could easily turn violent. It’s admittedly possible that she was happy to help an anti-Kavanaugh conspiracy, and “take one for the cause,” by fabricating her tale. ” But I’m glad I don’t have to make that argument.

Moreover, unlike Ramirez, Ford can point to a sworn statement from her husband maintaining that she mentioned Kavanaugh as her assailant back in 2012. One other statement, from a friend, says that this past June, nine days before the announcement of Kavanaugh’s nomination, in response to the friend’s question, she specified Kavanaugh as the federal judge she had initially told him in 2016 had assaulted her in high school. A third friend has stated (also under oath) that Ford told her in 2013 of a high school assault on her by a federal judge, though the judge was not named. (See here for a summary of these statements.) 

If strong evidence refuting or strongly challenging any of this comes out in the next week, or whenever, then clearly I’ll need to rethink my conclusion.

Nonetheless, the actions of many Democrats in this Kavanaugh stink hardly persuade me that justice will have been done if his nomination is defeated – much less that the good of the nation will have been served. Quite the contrary. Their readiness to label him a sexual criminal based simply on Ford’s then-anonymous accusation shows that the bar for such charges has now sunk appallingly low, and that the chances of their success have now become appallingly high. (That’s why I completely sympathize with South Carolina Republican Senator and Judiciary Committee member Lindsey Graham’s diatribe against his Democratic colleagues.)

Consequently, there is reason for concern that the kinds of individuals that everyone should want in public service will refuse to take the risk of being Kavanaugh-ed. In other words the party has paved the way for successfully weaponizing slander in connection with sexual misconduct. At least as bad, in the process, for the reasons stated above, participating in FBI background checks might be successfully weaponized, too. The ease of libeling the subject has become too great, and the odds of paying the price too meager.

Yesterday, in an effort to balance some of the various competing considerations, I suggested on Twitter that, following the FBI probe (and assuming its failure to shed much more light on the allegations), that the Judiciary Committee and full Senate proceed promptly to votes. Then, and assuming that Kavanaugh won, that he withdraw his name from consideration. This outcome, I hope, might prevent the Supreme Court’s legitimacy from becoming fatally weakened – both because a critical mass of the public will never trust him no matter what; because he’s sadly tarnished his own credibility with too many sworn statements that raise too many consistency questions and might even be perjurious; and because his latest testimony has exposed too much evidence of excessive partisanship.

Yet a Kavanaugh withdrawal will still enable President Trump to exercise his entirely valid Constitutional right to nominate another conservative who shares his judicial philosophy. Indeed, this act of selflessness might bolster a follow-on nominee’s chances of success by shielding him or her in the public eye from especially scurrilous tactics, and possibly curbing some of the Democrats’ mud-slinging instincts. It might also go far toward repairing Kavanaugh’s image.      

But whether this idea is picked up or not, the American political system designates Senators the ultimate arbiters of nominations like Kavanaugh’s. At this point, I see no acceptable way forward other than permitting them to do their jobs – and then trying to figure out how to replace a Supreme Court nomination process that has become irreparably broken.   

Im-Politic: Judging Kavanaugh’s Latest Accusers

Tags

alcohol, Brett Kavanaugh, Christine Blasey Ford, CNN, Deborah Ramirez, Democrats, Im-Politic, Jane Mayer, Mark Judge, Michael Avenatti, prep schools, Ronan Farrow, sexual assault, Supreme Court, The New York Times, The New Yorker, U.S. Senate, Yale University

Once more, I started a day determined to blog about something other than the Kavanaugh Supreme Court nomination mess, and once more, I realize that there’s no point (until the hard economic data flow resumes – which will be soon – unless some globalist and/or free trade extremist writes something beyond even the pale of their increasingly loopy standard; or until something equally nutty happens with the Rod Rosenstein Justice Department mess).

Here, therefore, is a scorecard approach to where we stand in terms of Kavanaugh’s accusers, their credibility, and the related subject of his credibility – and why some points matter to varying degrees, and some points don’t matter at all, or hardly at all.

The first group of developments is pretty easily disposed of, and concern attorney Michael Avenatti’s claim that a client of his is a third Kavanaugh accuser (in addition to Christine Blasey Ford and Deborah Ramirez) who is “100% credible.”

That she may be. But having initially promised that she would come forward by tomorrow night, the outspoken lawyer, who initially burst into the spotlight by representing porn star Stormy Daniels in her lawsuit against President Trump, may be backtracking. Yesterday morning, he tweeted that the accuser would reveal her identity and her allegations “only when SHE is ready and we have adequate security measures in place.” He added, “it is her choice and hers alone as to when to surface bc it is her life. We expect it within the next 36 hrs.” So keep clock-watching.

At the same time, it looks as if the accuser is not a victim. In a email to the Senate Judiciary Committee (which is considering Kavanaugh’s suitability for a Supreme Court seat), Avenatti certainly never described her as such. Instead, he insisted that she was

“aware of significant evidence of multiple house parties in the Washington, D.C. area during the early 1980s during which Brett Kavanaugh, Mark Judge [the Kavanaugh friend who has denied Ford’s charge that he was present during the sexual assault she’s charged the federal judge committed against her as a high school senior] and others would participate in the targeting of women with alcohol/drugs in order to allow a ‘train’ of men to subsequently gang rape them.”

Avenatti also contended that multiple witnesses could corroborate these facts.

Examined closely, however, it’s not clear at all how conclusive her revelations will be, and whether they are even facts. After all, Avenatti isn’t saying that his client saw Kavanaugh and Judge participate in these rape gangs. He isn’t even saying that his client saw any such activity herself. Apparently she’s simply “aware of” some evidence. And aware how? Is there any documentation? Will it really be “significant” – whatever Avenatti thinks that means. At this point, who knows?

Further, although it’s true that many women have attested to the frequency of abusive behavior by Kavanaugh’s peer generation in this particular Washington, D.C.-area prep school scene, that’s not to say that this behavior amounted to gang rapes, or – as I noted last Saturday – that Kavanaugh himself was personally involved in any of it. These rebuttals also need to be kept in mind whenever the “multiple witnesses” testify in support of Avenatti’s client.

Comparable problems – and then some – plague Deborah Ramirez’ allegations of sexually abusive Kavanaugh behavior during their freshman year at Yale, the year after Ford claims the judge assaulted her. These charges appeared in a New Yorker article on Sunday, and Ramirez, like Ford, has put her name behind them. But you can believe (as I do) that it’s as difficult as it is courageous for any victim to make a sex crime accusation public; that because of the cruel reactions often generated by these charges, even victims who go public often understandably do so only after many years; that for similar reasons, victims often don’t confide even in close family or friends; and that memories of even such traumatic events can age badly, and still be legitimately troubled by Ramirez’ story – and The New Yorker‘s decision to publish it and role in developing it.

First, as widely noted, New Yorker reporters Ronan Farrow and Jane Mayer acknowledge that they could not confirm

“with other eyewitnesses that Kavanaugh was present at the party [where the incident allegedly took place]. The magazine contacted several dozen classmates of Ramirez and Kavanaugh regarding the incident. Many did not respond to interview requests; others declined to comment, or said they did not attend or remember the party.”

Two other major news organizations made the same kind of effort – The New York Times and CNN. Both failed. And neither has been accused of shilling for Republicans or for the Trump administration.

As a result, it’s legitimate to wonder why Farrow and Mayer, and their editors, at the least didn’t decide to wrap the article up at that point – excepting some basic background information about the Kavanaugh battle, and the story of how Ramirez’ experience came into the public domain (which might be crucial, as will be explained below). After all, every other piece of evidence they serve up is either hearsay or opinion that rarely even qualifies as plain gossip.

The most convincing support for Ramirez comes from the first Yalie presented by Farrow and Mayer:

?A classmate of Ramirez’s…said that another student told him about the incident either on the night of the party or in the next day or two. The classmate said that he is ‘one-hundred-per-cent sure’ that he was told at the time that Kavanaugh was the student who exposed himself to Ramirez. He independently recalled many of the same details offered by Ramirez….”

The big problem – this person insisted on anonymity.

Not quite as strong, but deserving to be taken seriously: “Ramirez told her mother and sister about an upsetting incident at the time, but did not describe the details to either due to her embarrassment.” So that looks like contemporaneous corroboration. But it’s disturbingly vague.

Falling into the literal hearsay category – the account of another classmate. Richard Oh did agree to be identified. But he simply “recalled overhearing, soon after the party, a female student tearfully recounting to another student an incident at a party involving a gag with a fake penis, followed by a male student exposing himself. Oh is not certain of the identity of the female student.”

Classmate Mark Krasberg told Farrow and Mayer that “Kavanaugh’s college behavior had become a topic of discussion among former Yale students soon after Kavanaugh’s nomination.: In addition, “In one e-mail that Krasberg received in September, the classmate who recalled hearing about the incident with Ramirez alluded to the allegation and wrote that it ‘would qualify as a sexual assault,’ he speculated, ‘if it’s true.’” In other words, he sounded much less sure about the charges’ veracity in the email than he did when speaking with the New Yorker reporters – quite some time later.

And if you closely examine the rest of the Yale student statements presented in the article, you see that whether they’re anonymous or not, they amount to nothing more than general endorsement’s of Ramirez’ (or Kavanaugh’s) candor and/or character, or lack thereof (in Kavanaugh’s case); expressions of confidence that Ramirez would have told them of the incident had it happened; and various descriptions of some of the Yale undergraduate social scene at the time as an alcohol-drenched zoo where women were often “sexually tormented” (according to then-roommate James Roche), and “victimized and taunted” – including by “male students in [Kavanaugh’s] social scene” (the reporters’ words).

Also fishy: How Ramirez decided to tell her story on a for-attribution basis. To begin at the beginning, Ramirez didn’t initiate the process at all. At one point, Farrow and Mayer write:

“As Kavanaugh’s confirmation hearings became a national story, the discussions among Ramirez and Kavanaugh’s classmates took on heightened urgency, eventually spreading to news organizations and to the Senate. Senate aides from Ramirez’s home state of Colorado alerted a lawyer, Stanley Garnett, a former Democratic district attorney in Boulder, who currently represents her. Ramirez ultimately decided to begin telling her story publicly, before others did so for her. ‘I didn’t want any of this,’ she said. ‘But now I have to speak.’”

The role of the classmates is at least an orange flag. Remember: None of them professes to have been present when Ramirez says she was abused. Some of them have been just fine with conveying hearsay and evidence-free speculation to the media. But once the confirmation hearings “became a national story” (not, apparently, once Kavanaugh was first appointed, but possibly once his confirmation looked certain?) they were engaged in urgent discussions among themselves. And then, their discussions “spread” (like an oil slick?) to “news organizations and to the Senate.”

At that point, moreover, the fingerprints of Democratic operatives are everywhere to be seen. As Farrow and Mayer tell readers at the start of their article, “The allegation was conveyed to Democratic senators by a civil-rights lawyer” (presumably Garnett, a prominent Colorado Democrat). The reporters go on to write that Ramirez “was at first hesitant to speak publicly, partly because her memories contained gaps because she had been drinking at the time of the alleged incident.”

To me, as suggested above, that’s perfectly understandable on all counts. As Ramirez has confessed, she was “embarrassed” – even though there is no reason to believe she did anything wrong, unless you count getting sloshed.

But contrary to the Farrow-Mayer description above, Ramirez didn’t simply decide to go public merely because some time had passed (“ultimately”) or even (mainly?) because she knew it would leak and wanted – again, understandably – to prevent her story to be distorted, at least according to her recollections. And she didn’t make the decision autonomously.

Instead, as the reporters themselves say, “The New Yorker contacted Ramirez after learning of her possible involvement” in the incident in question. Can anyone doubt that the aforementioned Democratic Senators gave her name to Farrow, whose dogged reporting was central to unmasking serial predator Harvey Weinstein, the former King of Hollywood (and major funder of Democrats) and Mayer? Not that there’s anything wrong with that. But it was this move, not anything that Ramirez initially said, that guaranteed she would lose her anonymity.

Further, her decision to go public-for-attribution evidently wasn’t made autonomously, either. As Farrow and Mayer put it:

“In her initial conversations with The New Yorker, she was reluctant to characterize Kavanaugh’s role in the alleged incident with certainty. After six days of carefully assessing her memories and consulting with her attorney, Ramirez said that she felt confident enough of her recollections to say that she remembers Kavanaugh had exposed himself at a drunken dormitory party, thrust his penis in her face, and caused her to touch it without her consent as she pushed him away.”

It’s difficult to finish these sentences and avoid the conclusion that Ramirez was prompted – including by a former Democratic public official.

Yet Ramirez may have been more than an entirely moldable piece of clay. In its own aforementioned investigation of the story, The New York Times also reported, “Ms. Ramirez herself contacted former Yale classmates asking if they recalled the incident and told some of them that she could not be certain Mr. Kavanaugh was the one who exposed himself.” So Ramirez’ confidence in her recollections may be anything but confident.

Not that Kavanaugh is home free on the merits (as opposed to the politics) by any means – mainly for two reasons. First, although he has categorically denied all allegations, the judge’s efforts to portray himself as a near choirboy in private school who may have occasionally had a few too many beers don’t square well with some compelling counter-evidence. And it’s not just that the early-1980s social landscape surrounding Kavanaugh’s alma mater and similar Washington, D.C. area institutions of learning sounds like a coed Lord of the Flies-type scene on steroids. It’s that several Kavanaugh peers have depicted him for attribution as a problem drinker in college, and that according to his close high school buddy Mark Judge (the alleged first-hand observer of the attack Ford claims) called their circle of friends “Alcoholics Anonymous.”  

The point is not how much of a boozer Kavanaugh was or wasn’t, particularly since an alcohol problem wouldn’t by itself prove that he committed any sexual assaults or engaged in harassment in high school or in college. It’s that if his credibility is convincingly challenged on this score, his blanket denial of the sex crimes looks a lot dicier.

Second, the charges of Kavanaugh’s first accuser, Christine Blasey Ford, have been called into question because aside from the judge, three of the five total individuals (including herself) that she’s stated attended the party where the alleged attack took place deny any memory of the evening. (One, a close friend, added, however, that she believed Ford.) Nonetheless, Ford is not completely lacking for corroborating witnesses.

As mentioned in my post last Saturday, Ford told a therapist of the incident in 2012. The therapist has no record of Kavanaugh’s name being mentioned. But Ford’s husband says that it was. (They were in couples therapy.) In addition, just this morning, her attorneys submitted to the Senate Judiciary Committee four sworn affidavits supporting her charges. They included one in which her husband restated his claim that Kavanaugh’s name was mentioned at the therapy session, and one in which self-described “close friend” Keith Koegler professed that Ford identified Kavanaugh as her assailant in an email in June, 2016 – right after the judge was listed as a likely Supreme Court nominee.      

As a result, it seems clear that a cloud is going to remain over Kavanaugh’s head no matter what happens at the upcoming hearing – a cloud much like that which the uproar and its fiendish complexity has formed over the nation’s entire politics.  

Im-Politic: The Kavanaugh Battle Needs Much Clearer Thinking on Both Sides

Tags

2018 elections, Brett Kavanaugh, Christine Blasey Ford, Democrats, Im-Politic, midterms 2018, Republicans, Senate Judiciary Committee, sexual assault, Supreme Court

I’m not crazy about recycling the gist of a recent series of Facebook exchanges here at RealityChek. But the debate over the Brett Kavanaugh Supreme Court nomination has become so heated as well as so important, and most thinking on both sides so sloppy, that it’s worth laying out comprehensively here the absolutely crucial distinctions that both Kavanaugh supporters and opponents generally keep ignoring or confusing.

>The clear trauma and even shame that Christine Blasey Ford felt during and following her alleged encounter with Kavanaugh at that party during their high school years does not necessarily mean that he committed sexual assault (assuming that she has IDd him accurately). Since she was only 15, it’s entirely possible that she experienced this reaction to an advance that, however clumsy and/or drunken, doesn’t qualify as any type of sex crime.

>The failure of Kavanaugh’s alleged actions to rise to the level of criminality does not necessarily mean that Ford was not psychologically and emotionally devastated, and that this reaction did not last for decades – and even continued to this day.

>As stated in my first Kavanaugh post, Ford’s apparent failure to report the incident to anyone, including the authorities, until 2012 (to a therapist) does not necessarily mean either that nothing like the incident ever happened and that she’s fabricating a story. Sex crimes and – by extension – perceived sex crimes are among the most under-reported of criminal offenses, precisely because of considerations like the above feelings of shock, shame, and humiliation victims so often experience, and their understandable reluctance to keep these wounds open, or to reopen them. Nor should we forget the still all-too-common tendency to blame the victim.

>Even if one of Ford’s motivations, or her main motivation, is to stop Kavanaugh, such partisanship does not necessarily mean that the incident she describes, or something like it, didn’t happen.

>Similarly, Democrats’ clear determination to use Ford’s charges as late-emerging weapons in a campaign to defeat the Kavanaugh nomination that long predates the allegations does not necessarily mean that the incident, or something like it, didn’t happen.

>The same goes for the claims that Democrats have ignored or downplayed similar sexual assault or abuse allegations against figures like former President Bill Clinton or U.S. Congressman and Democratic National Committee Deputy Chair Keith Ellison, who is currently running for Minnesota Attorney General.

>Claims that Kavanaugh has led an exemplary adult life, and even that he was an exemplary teenager, don’t necessarily mean that he didn’t commit the acts claimed by Ford, or something like them.

>Claims that such abusive behavior was commonplace among Kavanaugh’s peers, as made by many graduates of the private girls’ school Ford attended, along with many other colleagues and friends, do not necessarily mean that Kavanaugh himself committed any such actions either on that evening or at any time.

>Claims that Republicans’ opposition to a lengthy investigation of the alleged incident, along with Kavanaugh’s failure to call for one, do not necessarily mean that the former fear that Kavanaugh is guilty, or that he himself knows he is guilty. Both his supporter and the nominee can legitimately wonder how Kavanaugh’s innocence could be proved conclusively to Democrats and other died-in-the-wool Kavanaugh opponents, no matter how long such a probe lasted.

>The lifetime nature of a Supreme Court appointment does not necessarily mean that the current (political, not legal) process of confirmation should deny Kavanaugh some significant presumption of innocence (if not the “beyond a reasonable doubt” standard typically used in criminal trials).

As for me, I’m still undecided on whether Kavanaugh committed the acts alleged, and still deeply skeptical that a lengthy inquiry will shed any meaningful light on the question. That’s why I still believe that the only fair and legitimate way to decide his fate is via politics – with a vote on his nomination by the elected politicians Constitutionally authorized to make such decisions, and who know that, before too long, they may well be held accountable at the ballot box.

The only valid reason I can come up with to block a Senate vote indefinitely would entail a charge that Kavanaugh lied to the Senate Judiciary Committee on other matters during his confirmation hearings. But it’s surely revealing that none of his die-hard Senate opponents has yet brought a formal accusation along these lines.

Interestingly, my brother yesterday advanced an intriguing alternative political path out of the Kavanaugh conundrum: Postpone the vote until after the midterms, on the assumption that the outcome will represent a referendum on the nomination. In other words, if the Republicans retain control of the Senate, the public will have in effect endorsed Kavanaugh (and ensured his accession to the Supreme Court), and if Democrats take over the upper chamber, the public will have acted to ensure Kavanaugh’s defeat.

I’m agnostic on this matter, too, since in both scenarios, the public’s votes for the Senate will surely be influenced by many issues other than the Kavanaugh nomination. In other words, there’s no perfect or perhaps even good way out of the Kavanaugh predicament. And even if there were, everyone should continue feeling free to weigh in. But it would sure help if the thinking surrounding the controversy becomes a lot clearer than what the nation has been reading and hearing so far.

Im-Politic: Why the Kavanaugh Solution – at This Point – Needs to be Political

Tags

Brett Kavanaugh, Christine Blasey Ford, Constitution, Im-Politic, Republicans, Senate, sexual assault, Supreme Court, Trump

If you’re not completely depressed by the Brett Kavanaugh mess, you must be a hopeless partisan – either Democratic, because you’re exhilirated by the improved odds of derailing a Supreme Court nomination you opposed from the start, or Republican, because your main reaction is rage that Kavanaugh’s confirmation is now endangered by a shameful smear. Yet here’s a surprise: Despite the torrent of strident partisanship that’s still gushing, the often (rightly) besmirched process of “politics” looks like by far the best solution available, at least at this point in the story.

What’s most depressing, of course, is the likelihood that now each likely outcome of this nomination battle could result in a major injustice – either rewarding a sexual criminal with a lifetime post on the highest court in the land, with all the power that entails, or trashing the reputation of an innocent and possibly destroying his current family life.

Moreover, it’s entirely possible to be legitimately depressed about this situation even if you believe, as I do, that victims of sex crimes often fail to report them right away, or even for many years, for reasons that anyone with any sense of compassion should understand and accept; that for equally valid reasons, their memories of the these incidents can be flawed; that denial is a standard initial response even of the guilty; that the trauma induced by such actions is so powerful that even offenses by the relatively young can’t be soft-pedaled, much less excused; that even one-time assaulters need to be punished; and that in the court of public opinion (as opposed to the legal system), a blanket assumption of innocence shouldn’t always be made.

It’s entirely possible to be legitimately depressed despite these observations because, however compelling they are in general, it’s always less certain whether they apply to an individual case.

As a result, perhaps most frustrating and dispiriting of all, it’s entirely possible that the truth may never be known. There’s a view out there that, given enough time, resources, and energy by journalist or law enforcement officials, the full story will eventually come out. This is what we’ve just been told, for example, by former New York Times Executive Editor Jill Abramson. But with only one other person in the room at the time, according to alleged victim Christine Blasey Ford, and her apparent failure to share her story contemporaneously (and No, that’s not a criticism), this optimism seems excessive.

At the same time, the case for confirming Kavanaugh has merit as well. For example, there’s some evidence that a large percentage of sex offenders are repeat offenders, but no evidence has yet surfaced of a pattern of abusive behavior toward women by Kavanaugh at any stage of his life. (Some researchers, however, have found that most sex offenders are not repeaters.)

Less convincing, but not entirely out of bounds, is the “horseplay” argument – i.e., that the force of Kavanaugh’s alleged advances was not nearly as strong as Ford has indicated. On the one hand, I strongly agree that whenever anyone signals reluctance, an immediate stop in the activity in question is mandatory – even when teens are involved. On the other hand, as observed by Washington Post columnist David von Drehle (who wants Kavanaugh to withdraw his nomination), “adolescent boys and girls often address their awkwardness with alcohol, and sexual inexperience plus inebriation is a time-tested recipe for regrets and misunderstandings.”

So there’s plenty of powerful ammunition available to both sides in the Kavanaugh fight, and possibly towering stakes. What to do? Here’s where politics comes in. The Constitution vests the Senate with the authority to approve or disapprove a President’s Supreme Court (and many other) nominees. Although the Founders were looking for a check on presidential power from a body that they wanted largely shielded from popular pressures (by stipulating Senators’ election by state legislatures), since the advent of direct elections in 1913 (via the 17^th Amendment) these pressures (i.e., standard politics) are now the paramount standard. Here’s the essential background.

As a result, with this set of circumstances, the most legitimate way for the nation to solve this problem is to hold a Senate vote on Kavanaugh (unless he withdraws or President Trump pulls the nomination), and therefore discover what the popular will is. This vote could certainly be preceded by a new investigation that would add to what is already known about Kavanaugh from the several background checks he has gone through during his career in public life. But I would hope that the investigation is short – because of my aforementioned doubt that new evidence can be found.

Senate approval of Kavanaugh would be a clear sign that at least a plurality of Americans is comfortable with him serving on the Court – for whatever reason they choose – and vice versa. Moreover, there’s a useful recent precedent in this regard: President Trump’s election.

As many no doubt remember, shortly before the November, 2016 vote came the surfacing of the “Access Hollywood” tape, which contained a boast from candidate Trump about behavior that could well qualify as sexual assault. In addition, throughout the campaign, numerous women accused Mr. Trump of just such behavior. These charges, along with the tape, were widely reported. The public had ample opportunity to consider them. Voters ultimately deemed him fit for the highest office in the land nonetheless.

Voters have a chance to tell their Senators what they think of the Kavanaugh nomination, too, and lawmakers can also consult the polls. Is it reasonable to contend that, because Ford’s charges became public so recently, voters need more time to contact their Senators, or that Senators need more time to seek their opinions? Sure. But the resulting delay in the vote, again, should be short.

Skeptics could argue that, since Republicans hold the Senate, this exercise would be a sham. But the GOP members might run significant risk for blowing off their constituents’ opinions, especially given that the party’s ratings from women have been pretty dodgy lately. Moreover, if after any confirmation, important evidence against Kavanaugh came out, he could be impeached.

A reasonably prompt Kavanaugh vote certainly wouldn’t disburse all the clouds currently hanging over his nomination. But it would stamp it with a democratic (small “D”!) seal of approval. What more could the nation reasonably hope for?

Im-Politic: Trump’s Victory Lap after Supreme Court Travel Ban Ruling Looks Premature

Tags

border security, Constitution, Im-Politic, Muslims, refugees, Supreme Court, travel ban, Trump

President Trump has called the Supreme Court’s ruling Monday on the second version of his travel ban a major triumph for his anti-terrorism and homeland security policies. Having read the decision, I’m a lot less sure. Moreover, it looks like the administration’s policymakers might have undercut some important principles that their lawyers had originally asserted.

First of all, it needs to be remembered that the Court specified that its reasoning in this decision was not based on the same criteria that would be used for a final ruling. Why not? Because, as it explained, it was being asked by the Trump administration to stay an injunction from lower courts preventing enforcement of the key ban provisions. In plain English, the Supremes were responding to an administration request to suspend temporarily lower court orders (injunctions) that blocked the federal government from putting into effect the revised Executive Order on the subject, and a majority of the justices agreed to do so – in part.

According to the majority, this ruling was tailored precisely to standards it considered appropriate for stay orders. It further explained that these standards were close to the already relatively low bar it found needed to be met for granting plaintiffs’ requests for injunctions. When the Court decides the final case, these Justices explained, it will rely on somewhat different legal standards and considerations.

That sounds reasonable enough. But I fear that an especially dangerous conclusion the Court arrived at could well find its way into that final ruling, and it has to do with the President’s ability to keep out of the country travelers or refugees (whose applications were also suspended by the Executive Order, and whose entry quotas were reduced) who are judged to have some significant connection with persons or institutions in the United States.

Simply put – and again, by the standards it set forth for stay decisions – the Justices held that the government has great authority (it didn’t specify how much) to control entry into the United States when the traveler or the applicant “lacks any bona fide relationship with a person or entity in the United States.” But when the traveler or applicant has such a “bona fide some connection to this country,” the government’s control over the border is significantly qualified.

The Court didn’t define “bona fide” either, but the examples it used from the lower court decisions (on whose behalf the travel ban legal challenges were pursued) include the mother-in-law of a citizen, the wife of a legal permanent resident, and students from the six countries covered by the proposed ban who were admitted to the University of Hawaii. The Court’s rationale? Barring the admission of such would-be travelers or refugees even temporarily (remember – the Trump proposals call for 90-day suspensions for travel from the six, and a 120-day suspension of refugee admissions) would “harm” the interests of the plaintiffs (the son-in-law, the husband, the students, the university) to such a degree that this harm outweighs both the government’s right to control the country’ borders and “the overall public interest” (the decision-making framework it specified for stay orders in this field).

Again, the Justices said they would use different standards, and weigh the competing considerations, in a different way in their final ruling. But the above certainly suggests that at least some of those in the majority aren’t terribly receptive to the idea, originally advanced by the administration, that the president – as the relevant statute says – without exception can “suspend the entry of all aliens or any class of aliens” to the United States “whenever [he or she] finds that the entry of any aliens or of any class of aliens…would be detrimental to the interests of the United States.”

Now it may seem entirely understandable to ask how admitting into the country someone’s wife or mother-in-law could endanger national security. Let’s leave aside the question of when in U.S. history judges won the right to question what are inevitably judgment calls in the conduct of foreign and defense policy (which the Court’s ruling didn’t broach directly). Let’s also remember that the final decision will reflect a different set of legal and other factors.

What’s still odd, however, about this argument is that one of the seminal justifications for a U.S.-style legal system is that prioritizing process in considered the best way to ensure the greatest number of just outcomes. In this stay ruling, the majority seems to be saying that the Executive Order’s legitimacy could be in jeopardy because it has simply he has “burdened” certain individuals. Further, we’re not talking about lawsuits that affect mere handfuls of people on either side. Although it’s “only” a stay decision, an anti-travel ban ruling could endanger the entire country (precisely because national security is involved). Don’t such stakes deserve special attention?

And here’s the kicker: In arguing for their focus on specific individuals and their misfortunes, the majority was able to cite the Trump administration’s own decision to mollify critics of the original travel ban by including in the second version “a case-by-case waiver system pri­marily for the benefit of individuals” who do claim “bona fide connections to Americans or American entities.” So that train could well have left the station legally.

How much better for the administration to have held firm at least for the brief durations of their travel ban and refugee suspension, and then having its unfettered authority to regulate these flows affirmed, voluntarily included a review or appeals process in its longer-term programs.

Presumably because issuing a stay order depends on such a specific set of criteria, and because judges generally prefer to decide cases on the narrowest possible grounds, this latest travel ban judicial decision failed to deal in explicitly and in detail not only with several major issues raised by the Executive Order and the challenges it has generated.

As indicated above, the ruling did not address the extent to which (if any) courts can challenge presidential foreign policy judgments where expressly Constitutional questions over defined governmental responsibilities (such as war-making power) do not arise. It also only glancingly referred to claims that the second Executive Order unconstitutionally discriminates against Muslims as such (violating their religious freedoms), and the related issue of whether a politicians’ campaign statements, including those made as a private citizens, represent valid evidence of a policy’s intent.

But when it comes to immigration- and refugee-related issues, some Justices in at least one recent case has acted in a disturbingly political and frankly ditzy way – equating lying on an immigration form about a spouse’s involvement in war crimes with lying on that form about a speeding ticket. (This case is still up in the air.) Sadly, given the rancor and division that’s infected so much of America’s public life, there’s no guarantee that the Court will keep its head any better. on the Trump Executive Orders.

Im-Politic: Trump Derangement Syndrome Breaking Out on the Supreme Court?

Tags

Balkan wars, Bosnia, citizenship, deportation, Im-Politic, Immigration, Immigration and Citizenship Services, John Roberts, Muslims, naturalization, refugees, Reuters, Serbs, Srebrenica, Stephen Breyer, Supreme Court, Trump

Question: When is serving in a military unit that’s committed horrendous war crimes the legal equivalent of getting a speeding ticket? Or absentmindedly bringing a key-chain pen knife into a government office building? Or maybe even jaywalking? Answer: When the U.S. Supreme Court nowadays is evaluating an immigration case.

Think I’m kidding? Then check out this Reuters account of a hearing held by the high court that dealt with an immigrant from Bosnia who was deported and stripped of her citizenship last October. The reason? She had lied on her application to enter the country as a refugee. Now, Divna Maslenjak is seeking to restore the status quo ante. And according to the Reuters piece, several Justices are concerned that in defending the U.S. government’s previous decision (made, mind you, under the Obama administration), President Trump’s Justice Department is laying the groundwork for revoking citizenship for false statements that had no significant influence on the original refugee decision.

Nothing intrinsically wrong with that. Everyone, for example, forgets things or gets details confused. These lapses are particularly understandable in the chaotic conditions with which most refugees struggle. Nor could any reasonable person quibble with Chief Justice John Roberts concern that the Trump administration position (even though it’s drawn straight from the U.S. Citizenship and Immigration Services’ naturalization form) could enable the government to strip citizenship from naturalized Americans for lying or for omitting information about minor legal infractions that even the most scrupulously law-abiding folks everywhere are hard-pressed to avoid completely.

As Roberts noted, “in the past he has exceeded the speed limit while driving. If immigrants failed to disclose that on a citizenship application form asking them to list any instances of breaking the law, they could later lose their citizenship, the conservative chief justice said. ‘Now you say that if I answer that question ‘no,’ 20 years after I was naturalized as a citizen, you can knock on my door and say, ‘Guess what, you’re not an American citizen after all?'”

Associate Justice Stephen Breyer, who is viewed as considerably more liberal than Roberts, agreed, “noting he had once walked into a government building with a pocketknife on his key chain in violation of the law.”

Added Breyer: “It’s, to me, rather surprising that the government of the United States thinks that Congress is interpreting this statute and wanted it interpreted in a way that would throw Into doubt the citizenship of vast percentages of all naturalized citizens.”

Fair enough. But the lie in question did not concern a speeding ticket or an innocent failure to check the contents of one’s pockets. Nor did it concern an intrinsically legal but possibly questionable act that had no important bearing on Maslenjak’s application for refugee status. In fact, it concerned a subject central to her request: Despite telling the government that, as ethnic Serbs, she and her family feared ethnic persecution by Bosnia’s Muslims, she never mentioned that, as the Reuters article reports, her husband (who had received refugee status when she did) served “in a Bosnian Serb Army brigade that participated in the notorious 1995 massacre of 8,000 Muslims in the Bosnian town of Srebrenica.” And P.S.: He lied about the matter as well.

Now it’s possible that the husband was completely uninvolved in this, or any other, atrocity (another subject about which the naturalization form inquires). It’s also possible that, whether he was complicit or not, that’s what Divna, his wife, believed. Or he simply could have lied to her. If he was innocent, he might have been afraid that the relevant American authorities simply would not have believed him. Certainly, no one could blame inhabitants of countries ruled by oppressive and/or corrupt governments for not trusting U.S. officials right off the bat.

But apparently, neither spouse has offered any such excuses. Nor did any of the Justices apparently mention them. Both the Maslenjaks and Roberts and Breyer (and possibly some of their colleagues) seem to be focused on technicalities – and perhaps the former and their lawyers are counting on the Trump administration’s “anti-immigrant” reputation and the resulting backlash to help sway the Court.

The Justices’ final decision isn’t due until late June. It could be a great test of whether they, like so much of the rest of the country, have succumbed to Trump Derangement Syndrome.