Thursday, July 4, 2019

What Good Is The Supreme Court?

Aren't Supreme Court justices supposed to be highly credentialed legal scholars--well, at least nowadays? Don't they have a small army of law clerks, all graduates of from the top tier of their class at the top law schools? And, in the case of Brett Kavanaugh, isn't every single one of those clerks the smartest female available for the job?

A top professor at Yale Law School who strongly endorsed supreme court nominee Brett Kavanaugh as a “mentor to women” privately told a group of law students last year that it was “not an accident” that Kavanaugh’s female law clerks all “looked like models” and would provide advice to students about their physical appearance if they wanted to work for him, the Guardian has learned.
Amy Chua, a Yale professor who wrote a bestselling book on parenting called Battle Hymn of the Tiger Mother, was known for instructing female law students who were preparing for interviews with Kavanaugh on ways they could dress to exude a “model-like” femininity to help them win a post in Kavanaugh’s chambers, according to sources.

And you wonder why going to Yale beats out other schools? When you have Amy Chua as adviser, the world's your oyster, if you look like a model.

But how is it that the SCOTUS, led by no less than the Chief Justice himself, came up with such an absurd ruling as the recent Department of Commerce v. New York case in which they decided that it was OK to engage in mind reading regarding an act that was perfectly legal? Shades of the Mueller/Weissmann obstruction theory! I'm very much inclined to agree with Joe DiGenova's explanation--that the case had nothing to do with the law and was simply about John Roberts wanting to poke a finger in Donald Trump's eye. Which says a lot about the passive-aggressive mindset of of men who have spent their entire lives single mindedly pursuing a sinecure in which you get to wear a black robe.

But, now come David B. Rivkin Jr. and Gilson B. Gray to explain that there's a perfectly good way for Trump to give Roberts the kick in the pants he deserves while simultaneously occupying the high ground of constitutional governance: How to Put Citizenship Back in the Census--The 14th Amendment gives the Trump administration the justification it needs.

Here's what the 14th Amendment says:

Amendment XIV

Section 2.
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

 Here's the short and sweet version, provided by Rivkin and Gray:

Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be “reduced in the proportion which the number of such . . . citizens shall bear to the whole number of . . . citizens . . . in such state.” This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state.

In other words, if the federal government is to be in a position to enforce the mandates of the 14th amendment then it must count how many citizens reside in each and every state of the Union. No ifs, ands, or buts about it. So here's the Rivkin/Gray advice to Trump:

The president should issue an executive order stating that, to comply with the requirements of Section 2 of the 14th Amendment, the citizenship question will be added to the 2020 census. In addition, he can order the Commerce Department to undertake, on an emergency basis, a new Census Act rulemaking.
That would trigger another round of litigation. Opponents would choose a federal district court likely to block it again, and the Justice Department would have to seek the Supreme Court’s intervention during its summer recess. While rare, such an emergency review has happened before. With the justification for the citizenship question being clear and compelling, the administration should prevail.

So why didn't all those supposedly smart lawyers at the Supreme Court figure this out?


  1. The jury is still out on Kavanaugh. He was not my first choice but the President was in a tough spot with Flaky, Collins and Murkowski. I'm personally very resentful of Kavanaugh hiring all female clerks.

    Roberts is a disappointment. He's probably NeverTrump. I hope that Ginsburg will be replaced by Amy Coney Barrett.

    1. He seems a bit squishy. The business about all females seems a bit creepy, even though I believe he's good on some important issues.

  2. I can only speculate here and probably project a bit of my own thinking onto him. If I were in his shoes, the way I was treated by the left would make me double down in my firmness to rule the way I thought was correct.

    I did admire the way he defended himself forcefully. I have no doubt that he is telling the truth. The Nutty Professor probably read his friend Mark Judge's book and built her story off of that.

    What a world we live in where everyone couldn't see that she had no credibility. And to be fair, it's possible that she could've been molested. But I don't believe that it was by Kavanaugh.

    She was caught in so many lies.

  3. Perhaps I don't remember this correctly, but I'm certain I saw a photograph (earlier this year) of a Kavanagh law clerk who looked decidedly non-feminine, decidedly asexual, dyke-like--a bit man-ish you might say, but as Kavanagh, apparently, only hires women law clerks I knew it to be female.

    BTW, how can a federal judge only hire female law clerks? What's up with that?

    1. I believe it's the same as with Congress--the civil rights laws don't apply to them. That's how Ginsburg gets away with this:

      Kavanaugh has engaged in one of the most diverse hiring practices of any federal appellate judge. Of his 48 law clerks, a little more than 25 percent have been nonwhite. And as a justice, he has already hired one African American clerk. She is one of only three blacks clerking on the Supreme Court this year — two of whom previously clerked for Kavanaugh on the Court of Appeals. . . .

      Ginsburg, on the other hand, has hired only one African American law clerk in her 25 years on the Supreme Court. This is an improvement from her 13-year tenure on the U.S. Court of Appeals for the District of Columbia Circuit, when Ginsburg never had any black clerks. When this issue was raised during her Supreme Court confirmation hearings in 1993, Ginsburg said: “If you confirm me for this job, my attractiveness to black candidates is going to improve.” This remains a promise unfulfilled. . . .