Senator Collins is naive and/or willfully ignorant of the facts surrounding the Kavanaugh nomination.

     I would love to see capable people annotate the entire text of Senator Collins’ statement today explaining why she is going to vote to confirm Brett Kavanaugh for a seat on the United States Supreme Court.   In the meantime, I see significant flaws in her analysis. 

     First, is the question of Roe v. Wade. Collins is convinced that a Justice Kavanaugh would not overturn it because he told her how much he respects precedent. Of course, that is what Chief Justice John Roberts said in his confirmation -- but then proceeded to vote, in Citizens United, to overturn a century of precedent involving campaign finance laws and the First Amendment.  Likewise, in Heller, Chief Justice Roberts voted to ignore long-standing precedents with respect to the the “well-ordered militia” language of the Second Amendment. So Senator Collins should not have been so credulous regarding Judge Kavanaugh’s assertions, particularly since his formative years in his pre-judicial career were spent as a right-wing political operative. The Federalist Society incubator cannot be ignored. Indeed, Senator Collins’ invocation of the pro-choice decisions of Republican appointees O’Connor, Kennedy, and Souter actually undercuts her argument. For the last quarter century, the rallying cry of anti-choice Republicans has been “No more Souters!” So now we have Justices Alito, Roberts, and Gorsuch, who with Justice Thomas, have consistently voted to undercut Roe. With retired Justice Kennedy about to be replaced by Judge Kavanaugh, the stage is set for the reversal. Lest Senator Collins think that this is not so, all she need do is look at how, earlier this year, Judge Kavanaugh placed insuperable roadblocks to an incarcerated 17 year old immigrant seeking to terminate her unwanted pregnancy before he was stopped by the full District of Columbia Circuit. Senator Collins’ naïveté is breathless.

     But what of Senator Collins’ conclusion that Judge Kavanaugh was truthful denying the Christine Blasey Ford and Deborah Ramirez allegations? While Senator Collins seems to accept Dr. Ford’s good faith, she notes the possible incongruity of how Ford could have gotten home from a house near Columbia Country Club. The FBI could have looked into this, but did not. And there are plausible explanations, even though Dr. Ford, to her credit, did not speculate. And the FBI declined to interview her, even though she repeatedly offered to subject herself to such an interview.

     Compare this to Judge Kavanaugh’s insistence that his drinking never got out of hand -- a linchpin of Dr. Ford's allegation. Judge Kavanaugh's insistence is undercut by contemporary documentary evidence (his Georgetown Prep yearbook, his own calendar, his own note to his friends in advance of "Beach Week", and his friend Mike Judge's memoirs) and is directly refuted by sworn statements of many of his Georgetown Prep and Yale classmates. See here.  But the FBI refused to explore this vital aspect of the controversy, which also underlies Ms. Ramirez's allegation.  Indeed, other than interviewing Ms. Ramirez, the FBI did absolutely nothing to test the veracity of her allegation or  Judge Kavanaugh's denial.  Senator Collins simply ignores these grave, indeed fatal, flaws in the FBI "investigation." Instead she asserts that the FBI investigation satisfied her. (Given the gravity and evidence supporting Dr. Ford's and Ms. Ramirez's allegations, it is irrelevant to Judge Kavanaugh's veracity or responsibility whether there is truth to the Julia Swetnick allegations; but Senator Collins seizes on the Swetnick charge, to the exculsion of any serious consideration of the Ford or Ramirez charges.)

     Finally, Senator Collins ignores Judge Kavanaugh's dreadful, revealing performance last Thursday before the Senate Judiciary Committee, in which his inner partisan hit-man instincts came out. This caused retired Justice John Paul Stevens (another Republican, albeit one who often voted with the Court’s liberals) to withdraw his endorsement.  But this did not seem to trouble Senator Collins at all.

     I do not know whether Collins is this naive or is willfully determined to ignore the salient facts. But I do know that I am utterly unpersuaded by her.

"Lies and the Lying Liars Who Tell Them." Al Franken was not exaggerating.

In early 2003, Al Franken published his book Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. As a fan of Franken's, I read the book with great interest, assuming it would be a biting, hilarious satire.  To my surprise, while the book was biting and often funny, it was a well-documented piece of non-fiction.  The title, which I had assumed was hyperbole, turned out to be a deadly accurate summary of the actual state of play in American politics.

The book destabilized my assumptions about political discourse.  I always figured that people would spin the facts to favor their own conclusions, but, in the United States, I thought that prominent figures would not stoop to straight-out lying on important matters -- if only because they knew they would get caught and would suffer adverse consequences.  But Franken showed that the most prominent right-wingers lied repeatedly to advance their interests, and got away with it.

Still, I hoped that this "ends justify the means" approach had not gone beyond the best-known commentators and politicos.  Later in the year, however, I learned that it was the modus operandi of the hard right, at least when it came to the cultural struggle over sexual orientation.  As chair of the Citizens Advisory Committee on Family Life and Human Development, appointed by the Montgomery County (Maryland) Board of Education, I presided over discussions about the inclusion in the secondary school health education curriculum of material on sexual orientation.  The Committee included some people who were very conservative, including one who repeatedly presented "information" which was demonstrably false.  This advocate did not simply look at the facts through a different prism, but rather presented as fact things that had long been rejected by every mainstream American medical and mental health professional association.

Throughout 2003 and well into 2004, I spent countless hours examining the "studies" which purported to conclude that being gay was a disease, that it was caused by abuse, that people could choose to change their sexual orientation, and that gay people could not possibly have healthy and happy lives.  At every turn, I discovered (often with the help of medical professionals on the Committee) that these studies had no scientific validity and that they almost invariably were funded by right-wing religious groups which decided, as a matter of theology, that these things were true.  When the facts did not fit their theories -- which was constantly -- they simply ignored the facts, the realities of actual people's actual lives. At every turn, I was able to show this to my fellow Committee members, and the Committee votes were overwhelmingly in favor of presenting the facts as found by our mainstream medical professionals.  And after a long struggle -- which included an ambush lawsuit and later a second lawsuit for which we were prepared and resoundingly won, as well as foot-dragging by people within the school system who admitted to us that we were right, but were afraid to challenge the small group of right-wingers  -- we finally succeeded in securing a good health education program.  A fuller account of the history of this successful struggle may be found here.

What we have seen with Donald Trump, those who serve him, and, it turns out, at least one person he wishes to put on the Supreme Court, is the triumph of lies over facts.  Not "alternative facts," as Kellyanne Conway posited, but lies.  Not spin, but falsehood.  Brett Kavanaugh demonstrably lied about his relationship with alcohol and the kind of person it turned him into -- facts relevant to the question of whether he, in fact, sexually assaulted Christine Blasey. See here. The Senate Judiciary Committee hearing last Thursday, and the sworn statements of multiple high school and college contemporaries of Kavanaugh's (statements the FBI chose to ignore), I believe made it clear to anyone who would choose to be open minded that Kavanaugh was lying.  But lying has become the coin of the realm in American politics -- at least on the Republican side.  What I witnessed and dealt with on a local level in Montgomery County in the beginning of this century was the approach that the Corporate and Social Warrior Right Wing used to achieve power a decade later. 

Turning this around will be hard, but we owe it to ourselves, our children, and our grandchildren to try as hard as we can.

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:

 

One Trump attack on American newspapers has been repelled for now. But the clock is ticking.

Elections matter. 

Earlier this month, the Donald Trump/Wilbur Ross Department of Commerce imposed tariffs on newsprint products from Canada.  Here is my August 26 blog discussing this move:

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Sunday, August 26, 2018

Trump Tariff on Canadian Paper Products: Conscious Attack on Newspapers, Coincidence, or Paranoia?

In the 2016 election, only 5% of the nation's daily and weekly newspapers endorsed Donald Trump.  See here.

Yesterday, an article  in the Washington Post explained how the Trump Tariff on Canadian paper products are “strangling American newspapers. ”  In June, when the tariff was first imposed, a report in the Post Business Section predicted this impact. Neither piece made what seems to me a pretty obvious connection.

Conscious attack, coincidence, or paranoia?  Well, to quote what often IS a fake news source, "we report, you decide."

http://davidfishback.blogspot.com/2018/08/trump-tariff-on-canadian-paper-products.html

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Yesterday, the Post reported that the International Trade Commission unanimously voted to nullify those tariffs. Newspapers get a reprieve as trade commission nullifies tariffs.

While the Post article notes that the ITC is an independent federal agency, it did not observe that only one of the five members was appointed by President Trump (and that nominee, Jason Kearns, had earlier been nominated by President Obama, but the Republican Senate had not acted on the nomination; he was renominated by President Trump in June 2017). https://www.usitc.gov/press_room/bios.htm  

So this most recent political attack on the print media has been turned back. But as President Trump makes new appointments as the present members’ terms’ expire (the term of the chair of the ITC, David Johanson, a Republican nominated by President Obama, is over on December 16 of this year), we can expect that he will seek to find people who will bend to his will.  

The clock is ticking.  The fate of democratic norms will be determined by the 2018 and 2020 elections.  That fate is in the hands of the American people.  May we be up to the task.