Imagine if Brett Kavanaugh had said the following.....

Imagine if Brett Kavanaugh had said the following when Christina Ford's allegations came to light:

"When I was in high school, I did a lot of really stupid things, typically involving drinking alcohol. I have no recollection of doing anything like what Dr. Ford describes, but I cannot categorically say it did not happen. The drinking was that bad -- as my friend Mark Judge wrote in his book. If I did abuse Dr. Ford while drunk at the age of 17, I apologize profusely.

"What I can categorically say is that I matured a lot after high school, learned to drink responsibly, and was able to put my immaturity in the past. I believe that my life as an adult demonstrates that I have acted responsibly in all aspects of my adult life. I stress to my daughters and the other girls I coach that young people should not drink;their bodies are too-often ill-equipped to keep the alcohol from impairing their judgment.

"And if I had sons, I would stress to them that they should never make the mistakes I made as a teenager."

If he had said it when the story first broke, I might have believed him. But now, having issued categorical denials over the past days, I for one, would not believe his sincerity. The Trumpian strategy of Deny, Deny, Deny appears to be contagious. We must do everything we can to keep the contagion from spreading.

"The Trump administration is choosing corporate profits over public safety" -- Letter to the Editor of the Washington Post, 9/18/18

Published in The Washington Post, Sept. 18, 2018

Letters to the Editor Opinion

The Trump administration is choosing corporate profits over public safety

Catherine Rampell’s Sept. 12 op-ed, “Making Asbestos Great Again,” brought to mind the long, multibillion-dollar struggle during the 1980s and 1990s between the asbestos-products industry and the Justice Department, in which the industry unsuccessfully sought to shift its tort liability to the federal taxpayers. As part of the United States’ defense team in that litigation, I learned that the industry knew about the hazards of asbestos but hid that knowledge from everyone else, including the federal government. That fact enabled the executive branch (in both Republican and Democratic administrations) to defeat lobbyists’ efforts to have Congress bail out the asbestos industry.

Now the Trump administration may be giving industry the green light to bring back the dangers in the name of corporate profits. My successors at Justice may not have the equitable argument against federal responsibility that we had. More to the point, as Ms. Rampell showed, while our economy may be getting a short-term boost from current federal policies, the price will be long-term damage to the country.

David S. Fishback, Olney

https://www.washingtonpost.com/opinions/the-trump-administration-is-choosing-corporate-profits-over-public-safety/2018/09/17/5ed187ca-b84e-11e8-ae4f-2c1439c96d79_story.html?utm_term=.6934ddc704ff

County Above Party PAC echoes the developers' tactic (and name) from 1962.

William Faulkner famously wrote that “[t] he past is never dead. It's not even past.”  That appears to be true in Montgomery County politics.  On September 13, Bethesda Beat reported  that a new political action committee has been started by wealthy developers in Montgomery County calling itself  “County Above Party.” The purpose of this PAC is to advance the County Executive candidacy of Nancy Floreen, who has abandoned her status as a Democrat in order to run as an independent.

I have lived in Montgomery County since 1955, the year my family moved to Silver Spring when I was seven years old.  So the term “County Above Party” rang a bell.  A minute on Google reminded me of where I heard it.  A few weeks before the election in 1962 (when we had a County Council, but no elected County Executive), a group of wealthy developers formed a group also called “County Above Party,” which poured money and campaign materials to oust the progressive majority on the Council, a majority which was trying to have orderly development in an era of fast-moving change.  The tactic worked, and the progressives were defeated.  Willy-nilly development policies ensued, leading to the ousting of the developers’ members in the 1966 election.  See Royce Hansen’s description of what occurred in his book Suburb: Planning Politics and the Public Interest. .  Another account of the 1962 "County Above Party" campaign may be found in a 2016 Louis Peck article in Bethesda Beat.  This account bears repeating:  

“One veteran political observer calls it the ‘great granddaddy’ of contentious campaigns in Montgomery County: the 1962 battle for the then-seven member County Council. It followed a nearly fourfold increase in county population—to 341,000 in 1960—and pitted older residents against newer arrivals on issues ranging from local growth to civil rights.

“Days before the election, a coalition of conservatives and business interests—billing itself as 'County Above Party' or CAP—mailed a political flier disguised as a newspaper to county homes. Targeting a tax increase approved by the Democratic-controlled council to address needs created by the county’s mushrooming growth, the flier also contained thinly veiled racial and ethnic references. This was in the wake of the council’s passage of the county’s first open accommodations law in early 1962, which resulted partly from public demonstrations against the racial segregation policies of the then-privately owned Glen Echo Amusement Park.

“The late Stanley Frosh of Bethesda, who supported the law, was among those targeted. ‘I remember there was a caricature of my father with a big hook nose. It was at least subtly anti-Semitic,’ recalls Frosh’s son, current Maryland Attorney General Brian Frosh. The flier contributed to the ouster of five council Democrats who had supported the law—including Stanley Frosh. In came the ‘Diggs Council’—so dubbed for its chairwoman, Katherine Diggs— and a 5-2 Republican majority. That council considered repealing the law, but rejected the idea in September 1963, following a debate that drew national attention."

A 2017 article by John Kelly in The Washington Post described the end of the "County Above Party" thusly: 

“Most of the County Above Party candidates lost in the next off-year elections, in 1966. But before they left office, they spent two days and one night whipping through hundreds of zoning requests. . . .An editorial in The Washington Post was later to describe it as ‘last-minute scurrility.’” 

So now the lineal descendants of the 1962 "County Above Party" developer group is trying the same thing --  hopefully, this time, without the ethnic and racial tinge.  It is likely no accident that the current PAC uses the same name as the 1962 group.

The 1962 political ambush should not be allowed to succeed in 2018. 

Indeed, the stakes are far higher in 2018, since now, in a three-way race for County Executive, it is not inconceivable that the "County Above Party"-supported Floreen candidacy could result in the election of Republican candidate Robin Ficker.  As those who have lived in the County for the last twenty years or more know, Mr. Ficker is a perpetual losing political candidate and demagogic gadfly, whose personality is so corrosive that his constant, ugly abuse of the athletes during games led Abe Pollin to not allow him to have seats near the players’ benches when the Bullets (now Wizards) moved to the then-named MCI arena in D.C. in 1997.  See, here.  While a Floreen victory would be unfortunate, Ficker’s election would be a full-fledged disaster.

Ms. Floreen has said that it is inconceivable that her candidacy could lead to a Ficker victory. See here.  But an analysis of recent Montgomery County election results belies that view:   Past experience demonstrates that any Republican candidate for County Executive is likely to receive about 1/3 of the vote.  (In the last three Montgomery County Executive elections, Republicans have received 33%, 34%, and 35%).    

   

So the blithe assumption of the Floreen Camp (that is, the "Citizens Above Party" Camp) that having what would effectively be a re-do of the Democratic primary could not result in four years of Robin Ficker as County Executive is naive. If Floreen’s money – and now the “Citizens Above Party” money -  is able to make it a horse race between her and Marc Elrich, creating an even split, then it is very likely that Ficker could get the 34% he would need to win.

Marc Elrich, contrary to the whispering campaign of the developers, is not a wild-eyed radical, but is a principled and practical progressive.  He has shown this in his years on the County Council.  All one needs to do is to listen to the September 11, 2018, County Council discussion on the Hogan proposals to expand I-270 and I-495 to see that this is the case.  The video may be found here (Mr. Elrich's comments begin at 66:18).  

Mr. Elrich won the Democratic Party primary fair and square.  His principal opponent, David Blair (whose views closely align with Ms. Floreen’s), has endorsed him.  See here.   Voters should unite behind Mr. Elrich and not allow a fiasco far worse than the one of 1962 to occur.  “County Above Party” was, and still is, really “County for the Benefit of the Developers.”

My only judicial exchange with the Notorious RBG

Ruth Bader Ginsburg.  Wow.

Bobbi and I watched the CNN film  RBG for the second time on Labor Day evening.  Just as good the second time around.  What a brilliant lawyer, jurist, and woman!  A public interest lawyer in the tradition of Louis Brandeis and Thurgood Marshall, in contrast to corporate political careerists who Republicans are now intent on putting on the Supreme Court.

I mentioned to Bobbi that I had one oral argument before Justice Ginsburg when she was on the D.C. Circuit.  The case, Eagle-Picher et seq. v. United States, 937 F.2d 625 (D.C. Cir. 1991), was on appeal from the District Court of the District of Columbia, in which we had convinced the lower court to dismiss as a matter of law third-party claims brought by several asbestos manufacturers seeking to shift their tort liability to federal employees in public shipyards on to the federal taxpayers.

We earlier had won similar cases the First, Third, Federal, and Ninth Circuits.  In re All Maine Asbestos Litigation (PNS Cases), 772 F.2d 1023 (1st Cir. 1985, cert. denied, 476 U.S. 1126 (1986); Eagle-Picher v. United States, 846 F.2d 888 (3d Cir. 1988), cert. denied, 488 U.S. 965 (1988); Lopez v. A.C. & S., 858 F.2d 712 (Fed. Cir. 1988), cert. denied, 491 U.S. 904 (1989); Bush v. Eagle-Picher, 927 F.2d 445 (9th Cir. Cir.).  But in each case, the legal theory adopted by the circuit in holding for the government was a bit different.

The panel in the D.C. Circuit case included Chief Judge Patricia Wald and then-Circuit Judge Clarence Thomas.  Needless to say, Judge Thomas did not ask any questions.  Chief Judge Wald asked most of the questions, but Judge Ginsburg was particularly active in interrogating my opponents on the question of "issue preclusion" -- the idea that they should be barred from re-litigating the legal question in the D.C. case, since they already had lost in the other four circuits.

The only question to me that I recall from Judge Ginsburg was at the very end of my time, and concerned the issue preclusion issue.  She wanted to know why the Government had not pressed it.  Her question was understandable, but I think I satisfied her, since the panel unanimously affirmed nearly all the results (if not the precise reasoning) of the district court, without reference to issue preclusion.  (The small portion that was remanded for further consideration was dismissed by the district court, and there was no further appeal.)  I like to think that my response completed the Government's presentation on a high, or at least a humorous, note.  Here is the transcript: