Contra Kavanaugh

[As always, check the byline — this is by me, Rayne, and I am not the lawyer on this crew.]

Call your senators RIGHT NOW and insist they do whatever they can to halt Brett Kavanaugh’s nomination to the Supreme Court. He should not be confirmed.

Congressional switchboard number: (202) 224-3121

Leave a voicemail, don’t put it off; there’s less than 24 hours before the hearing begins. Do you need a script to help make your call? Check with @Celeste_pewter at this link; she has you covered. Send a fax if you’d rather. Look up your senators’ contact details at But do it, RIGHT NOW. Come back to this when you’re done.

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Now that’s the important part of this post, the must-do call to action right up front. Drop everything and make the call before proceeding. Persuade friends and family to do the same right now.

The rest of this post is a formality over which I have fretted for more than a week. There are myriad articles out there, new ones published every day, explaining Kavanaugh’s judicial history and why he is unacceptable as a justice with a life-time appointment.

The most important reason, though, is evident in the actions of the White House and the GOP combined.

Bad, Bad Faith

They have acted and continue to act in bad faith about everything while in office. Kavanaugn’s nomination and their handling of the vetting process is but one more cluster of bad faith acts.

If this administration had nominated Kavanaugh in good faith, his works would have been openly available to the Senate Judiciary Democrats with few exceptions — but this is not the case.

If Kavanaugh himself was a good faith nominee, he would be pushing for his work to be open for evaluation — but he is silent.

If the GOP Congress was acting in good faith, they, too, would demand all Kavanaugh’s documents — but they aren’t. Senator Susan Collins in particular deserves a drubbing here, having signaled an intent to approve Kavanaugh based on the documents she’s seen so far and they are a piddling amount of the documents Kavanaugh created or was involved with during his career. She is willfully buying a pig in a poke in spite of her position on women’s reproductive health.

The hurry to seat Kavanaugh is also unnecessary; Mitch McConnell wants him to begin on October 1 with the SCOTUS’ next session. To meet this wholly arbitrary deadline McConnell has broken with past practice — and shorted the production of documents related to Kavanaugh’s work history.

It’s not just the Trump administration, either, since many of the withheld documents were generated during the Bush administration. An unprecedented and partisan review process by George W. Bush administration lawyers is running in tandem with the National Archives and Records Administration’s document production, which the NARA calls “something that has never happened before.” NARA can’t produce the Kavanaugh documents before the end of October; the Bush lawyers are cherry-picking their selection to meet the 9:30 a.m. Tuesday hearing.

Given what we know of the Bush administration’s efforts on torture and surveillance alone, Senate Democrats are right to be worried about the insufficiency of documents. Pat Leahy indicated what few documents they’ve received include many duplicates, further frustrating analysis.

Why are the administration and the GOP trying so hard to prevent access to documentation of Kavanaugh’s work history? Why the sudden reversal on transparency after a Republicans-only meeting on July 24th? What of the concerns Leahy expressed in an August 17th letter to White House Counsel Don McGahn?

…do you have reason to believe any of the records relate to:
1. The legal justifications or policies relating to the treatment of detainees?
2. The rules governing the detention of combatants?
3. The warrantless wiretapping of Americans?
4. A proposed constitutional amendment to define marriage as a union between one man and one woman?

These topics are far too weighty to be given deliberate short shrift — the specificity of exclusion is troubling, especially when combined with questions about Kavanaugh’s questionable finances and the likelihood Kavanaugh lied under oath before the Senate in 2006. It gives the appearance of a cover-up, which is more than bad faith; it’s malignancy.

Before Justice Kennedy retired we had already quite enough of GOP bad faith. Obama’s SCOTUS nominee Merrick Garland should have had a hearing; his work product had not been suppressed. Obama’s previous nominees had likewise been fully vetted, their documents made available. But Mitch McConnell suppressed Obama’s last appointment in bad faith; there is nothing at all in the Constitution to support the Senate’s denial of Obama’s appointment by refusing to evaluate his nominee.

Article 2, Section 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

(emphasis mine)

Refusing to hold a hearing meant a rejection of the Senate’s role to advise and consent. By the simplest interpretation of the Constitution, McConnell violated his oath of office by failing to support and defend the Constitution of the United States and to well and faithfully discharge the duties of his office.

Unfortunately there is no remedy save for impeachment of McConnell or removal by voters and neither will happen before Tuesday.

Unindicted Co-Conspirator-in-Chief

The next critical reason why Kavanaugh should neither receive a Senate Judiciary Committee hearing nor be confirmed is Trump’s current status as an unindicted co-conspirator.  Although the current conspiracy for which Trump has not yet been indicted is not now in Special Counsel’s folio, we cannot know until after Special Counsel’s Office has completed their work whether Kavanaugh’s appointment was part of a larger conspiracy to defraud the U.S. The Senate should exercise its role to advise and consent by refraining from evaluation of Kavanaugh until Trump’s status is resolved — and the Senate Judiciary Dems should uniformly reject a hearing and confirmation.

What is already known about Kavanaugh suggests he will not act neutrally should the prosecution of any case involving Trump as a co-conspirator come before the SCOTUS. In 2009 Kavanaugh wrote for the Minnesota Law Review on deferrals of civil suits, criminal investigations and prosecutions of the president,

… The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.

Even the lesser burdens of a criminal investigation—including preparing for questioning by criminal investigators—are time-consuming and distracting. Like civil suits, criminal investigations take the President’s focus away from his or her responsibilities to the people. And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.

In the same article, Kavanaugh encouraged Congress to write legislation “exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.”

This opinion is flawed and based on what he saw of Clinton, Bush, and Obama presidencies. We no longer have a president who is absorbed by the duties of the office, taking roughly 25% of his time in office to commit violations of the Emoluments Clause by playing golf at his own resorts. The Special Counsel’s Office investigation hasn’t disrupted his golf game; it hasn’t disrupted the remaining 75% of his time in office save for Trump’s entirely elective and unnecessary kvetching via Twitter about a witch hunt.

No feedback from senators so far indicates Kavanaugh would recuse himself on cases coming before SCOTUS related to civil suits or criminal charges against Trump.

Health Care, Women’s Reproductive Rights, Settled Law Unsettled

These issues are all of a piece since they are interrelated by a narrow number of cases and will likely come down to swing senators who claim to care most about these issues — senators Collins and Lisa Murkowski. Kavanaugh has been interviewed by Collins who says she believes he is in agreement with her that Roe v. Wade is settled law and not likely to change. Collins, however, has been screwed over repeatedly by her party in no small part because she trusts uterus-deficient counterparts to see women’s reproductive rights as she does (this is an awful wordy way to say she’s easily played).

Lindsey Graham, however, left off sucking up to Trump to suggest Roe could be overturned by Kavanaugh because “a precedent is important but it’s not inviolate.” Having said this on at least two different Sunday talk shows one might wonder if he is leading Kavanaugh or Collins and Murkowski.

No Senate Democrat should give Graham or Kavanaugh the benefit of the doubt, though. His dissent in Garza v. Hargan, the D.C. Circuit case in which a 17-year-old asylum seeker sought an abortion while in U.S. custody, is disturbing. He wrote,

The Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion. …

No. The government has no interests in favoring fetal life as if fetuses had rights co-equal to the mother, teen or adult, whether free or in detention. Forcing a minor to carry another child to term is not in the government’s interests; it’s child abuse.

Kavanaugh’s opinion in Priests for Life v. HHS, wrestling with the issue of religious freedom versus access to contraception, is also disturbing. He concluded,

First, under Hobby Lobby, the regulations substantially burden the religious organizations’ exercise of religion because the regulations require the organizations to take an action contrary to their sincere religious beliefs (submitting the form) or else pay significant monetary penalties.

Second, that said, Hobby Lobby strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.

Third, this case therefore comes down to the least restrictive means question.

Nowhere in this conclusion does it ever occur to Kavanaugh there are other reasons women are prescribed birth control besides contraception which have nothing to do with employers’ religious beliefs. To be fair, most men are clueless about the benefits of birth control for minimizing cramps and managing other debilitating menstrual problems. But this conclusion combined with the dissent in Garza do not assure that Kavanaugh will see Roe as settled.

Semi-Automatic Weapons Wankery

Not good. Kavanaugh dissented in Heller v. District of Columbia, a case which upheld Washington D.C.’s ban on semi-automatic weapons, writing that the Supreme Court

“held that handguns — the vast majority of which today are semiautomatic — are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens.”

This blows off the 1994 Federal Assault Weapon Ban which expired in 2004 and should have been renewed since civilian deaths by assault weapons escalated after 2004.

Kavanaugh couldn’t be trusted to support a ban on assault weapons which are semi-automatic.

Net Neutrality No-Go

This issue infuriates me as much as Kavanaugh’s dissent on Garza. Last year in U.S. Telecom Association v. FCC he wrote,

… While the net neutrality rule applies to those ISPs that hold themselves out as neutral, indiscriminate conduits to internet content, the converse is also true: the rule does not apply to an ISP holding itself out as providing something other than a neutral, indiscriminate pathway—i.e., an ISP making sufficiently clear to potential customers that it provides a filtered service involving the ISP’s exercise of “editorial intervention.” …

Except ISPs are nearly inseparable from telecom — which we would not allow any editorial rights over content — and ISPs are too thin in some markets, forcing customers to accept what might be the only ISP in their area along with that ISP’s “editorial intervention.”

I’m also disturbed by the examples he used of throttled content like Netflix and Ticketmaster while ignoring the possibility an ISP could exercise “editorial intervention” over essential services like email and VoIP.

Nothing like having Verizon sitting on the Supreme Court.

Surveillance State

Good Lord, his understanding of metadata…Kavanaugh wrote in his opinion for Larry E. Klayman v. Barack Obama, et al. (2015) denying an emergency petition,

… In my view, that critical national security need outweighs the impact on privacy occasioned by this program. The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine. … In sum, the Fourth Amendment does not bar the Government’s bulk collection of telephony metadata under this program. …

There’s no chance at all to his thinking that metadata itself could be the message.

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That’s more than enough without having to really dig, and I haven’t even touched on Kavanaugh with regard to LGBT equality. White House and GOP bad faith is enough reason to insist Kavanaugh not be confirmed.

If you made it this far without having called your senators, do it RIGHT NOW and insist they do whatever they can to halt Brett Kavanaugh’s confirmation to the Supreme Court. He should not serve a lifetime as a justice given what we already know.

Congressional switchboard number: (202) 224-3121

45 replies
  1. Buford says:

    I have been sending emails to both of my Senators, Gardner and Bennet. Gardner is a lost cause. He is corrupt, and a toady of the gop and trump. Bennet kinda scares me as being a Blue Dog. Gardner deserves much disdain and condemnation for his poorly disguised corruption.

    • Rayne says:

      Thanks for the effort. It still matters that the GOP members hear from constituents; if any are on the fence, swaying between continued toadying and doing the right thing, enough calls may be all that matters.

      • Tracy says:

        Thanks for providing the number and the script – I’ve made a call – how often should we call back – or do they just note each person once anyway? I have one Democratic (Casey) and one R (Toomey) senator. Bob Casey’s up for re-election in PA – he came out w/ a statement IMMEDIATELY that he would oppose Kavanaugh – good for him!! Pat Toomey, however, is worthless.

        Thanks for all this info, Rayne!

  2. yogarhythms says:


    Ty. Made the call to DC contra Kavanaugh. Ty for consice, cohesive, arguments contra Kavanaugh. One logical extreme of Kavanaugh’s reluctance to indict sitting President, orange palace occupier, elevation of this office beyond legal reach is unconstitutional on its face.

    [Edited for you. Thanks for the call! /~Rayne]

  3. theresa says:

    Is it possible that the newly seated Kavanaugh can be made to recuse himself from any SC decisions that may involve the President that nominated him?  This due to the fact that the President is claiming privilege regarding the nominee’s documents?  Can there be some valid reason?   Possibly a stupid question, I know, but I can’t stand the thought that Kavanaugh will be seated/approved and then influence the outcome of the Russia investigations.

      • theresa says:

        TY for replying.  I emailed my reps and asked them to ask him if he would recuse himself and haven’t gotten a reply.

      • Bob Conyers says:

        There is a long, ugly history of many justices refusing to recuse. Scalia was particularly snotty about it. Thomas ought to recuse himself from all kinds of things his wife lobbies for, but as far as his simple minded thinking is concerned, only liberals can be corrupt.

  4. earlofhuntingdon says:

    The irony is delicious that one of Kavanaugh’s most important jobs for BushCheney was to shepherd its nominees for the federal courts through the Senate confirmation process. Brett knows all about it, more than many current Senators.

    McConnell’s urgency to approve Kavanaugh is laughable as well as ironic, given how thoroughly and how long he held up Obama’s nominees. One of his arguments was that the people should be given a chance to speak – that is, vote – before the Senate acted. That was not an argument that had any currency after it was no longer useful to Mitch.

    Will the Senate Democrats ever consider that they are playing softly, softly, bringing kinds words and the occasional hard one to a knife fight.

  5. Mulder says:

    From the HuffPost link above: “Judge Kavanaugh may seem like the human incarnation of a vanilla ice cream cone,” Sen. Orrin Hatch (R-Utah), a member of the Judiciary Committee, said in a floor speech on Thursday, dismissing the focus on his Bush documents as a stalling tactic.

    Here’s my quote, “Sen. Orrin Hatch is the human incarnation of a casaba-melon.”

    I still want an answer. What did Mitch know and when did he know it? It was February 2016 when he pulled the BS Biden Rule out of his turtle ass. February!

    I’ve contacted my Senators and my Congressman for good measure.

    Thank you for the timely and thoughtful post.

    • earlofhuntingdon says:

      Hatch is being smarmy.  He knows very well how conservative is Kavanaugh and the kinds of decisions he will make.  The FedSoc made sure of it before they ever put his name up, but they’ve also been grooming him for two decades.  He and Hatch share a similar version of elite conservatism.

      Hatch is all pretense about this, he is selling a fairy tale.

    • Bob Conyers says:

      My feeling is that McConnell didn’t have any special insight after Scalia died into November 2016 – his plan was to block any followup nominee to Garland and wait as long as possible with eight justices and Roberts playing a delaying game to fight off accepting losing cases.

      His calculations may have changed later in the year, though.

      • Rayne says:

        I think we have been far too naive about the GOP’s capacity to conspire against a little d democratic system. As more ugliness crawls out from under rocks — like the NRA laundering donations from Russia to buy the GOP — we need to be far more suspicious of GOP leadership motives and operations.

        Justice Kennedy knew full well who he was going to suggest. Why wouldn’t that have been communicated in advance to McConnell?

        (small nit: Scalia died in February 2016.)

        • Bob Conyers says:

          Yeah, I wrote that badly. I was trying to get across that when Scalia died, I don’t think McConnell had any insights into what was going to happen in November.

          I agree McConnell was screwing things up as badly as he could, I just don’t think it was with an eye toward the Russia conspiracy, at least until much later in the year.

          • Doctor My Eyes says:

            Dallas Morning News:

            In 2015-16, everything changed. Blavatnik’s political contributions soared and made a hard right turn as he pumped $6.35 million into GOP political action committees, with millions of dollars going to top Republican leaders including Sens. Mitch McConnell, Marco Rubio and Lindsey Graham.

            By early August 2016 McConnell was in far enough to block a bipartisan statement on Russian interference in the election.

            On 1/9/17, McConnell was seen walking into Trump Tower at the same time Cohen and Vekselberg were meeting.

            I assume his knowledge of Russian interference can be dated from the time he started receiving millions in campaign contributions. We need more information about McConnell.  Here’s hoping Mueller has a solid time line.

  6. koolmoe says:

    Good stuff! Calls made, though my senators here in Md are (D) and already opposed. Thoughts:

    1. ‘Bad Faith’ – absolutely. This behavior across the entire Republican spectrum is not only shameful, but the lack of emphasis on this behavior on (granted, what little) MSM reporting is likewise sad. This alone should be huge news – it’s not a partisan issue, its a process and office-respectability issue. Across all sorts of behaviors, these types of actions should not only not-happen, but not be a potential precedent.

    2. ‘Unindicted Co-Conspirator…’ – absolutely. It’s a tougher argument as no one can tell how one would rule. Past opinions and behavior are certainly to be considered…but CJ Roberts has surprised me a couple times, so I hold out hope for the others (not a lot of hope, but some). I don’t think past opinions should necessarily be cause for recusal (should they?) but I…hope that should this issue come to SCotUS, the role, weight, and future of the country would rise above politics (yeah…I know…)

    3. All the other issues, while I absolutely agree with the concern and stance, are partisan issue – rightly or wrongly. They will hopefully encourage the public to call, debate, and protest – but they’re not, at the root, disqualifiers (IMO).

    • Rayne says:

      I don’t believe the other issues are partisan. Think about it carefully: why would a Republican — whose party is anti-illegal immigration, anti-chain immigration, anti-citizenship-by-birth based on this administration’s practices — insist that the government has a compelling reason to force an undocumented minor immigrant to give birth to a new citizen who has no means of support? This is not only hypocritical but a shady form of state-sanctioned human trafficking, one that insists on rights to the pre-born. It’s hardly partisan to insist that states do not have the right to take possession of unborn a la The Handmaid’s Tale.

      What horror to any young woman forced to risk 1-in-3000 rate of maternal mortality to be little more than Ofbrett. Or Ofdonald.

      Nor is it partisan to say that the internet is a series of toobz (RIP Ted Stevens (R-AK)), developed and facilitated by public resources to serve the greater public interest, which shouldn’t be throttled by any specific toobz operator because it has a conflict of interest based on content it creates and/or distributes through those toobz. Conflict of interest is not a partisan issue. Communications privacy is not a partisan issue. Limiting the possession and occupation of publicly-funded technological commons by certain corporations isn’t partisan. Imagine if Apple or Google decided to muster the massive cash they have on the books to buy all dark or grey toobz between every one of their customers and cut out the same parties now throttling content — suddenly the partisan sides would appear to switch. It’s not partisan, it’s only a matter of timing.

      I could go on but I never even got around to writing about Kavanaugh on pre-existing conditions, which is definitely not a partisan issue. All of us are pre-existing conditions — no one is excluded by party.

      • koolmoe says:

        I absolutely agree with your ethical/moral stance on the issues. I should have clarified, I suppose, especially given the lens through which I seem to be viewed…

        I meant partisan in the sense of the general approaches by either party. Republicans’ root issue with Net Neutrality seems simply to be lobbying and profit. Conflict-of-interest certainly should not be a partisan issue, but when that corporate-determined resolution results in higher profits (shareholder-value), it receives partisan (R) support. I certainly agree privacy shouldn’t be partisan, but looking at the history of ‘in the name of security’ excuses, it sure seems be a lopsided argument.

        Agreed on the immigration point you make too; again I’m using ‘partisan’ in the sense of the current trends. Anything that supports immigration in anyway, even if basic humanity, is considered a non-starter for the right.

        My overall point intended, not to be a troll in any sense, but that in the current environment, we can protest on ethical, even moral, grounds with full confidence. I don’t have hopes it’ll be seen as moral, however, in the current partisan, uh, debate. Republican’s have clearly voiced anti-immigrant and anti-neutrality platforms. They have not, as of yet, voice clear platforms on the end of due process…and I continue to have similar hopes when it comes to the conscience of our SC judges.

  7. Rayne says:

    I won’t share details but I sometimes wonder based on the trolls and bots pounding on the backdoor if some things bother them more than others.

    This post is one example. LOL

    Keep making the phone calls and sending the faxes!

    • marksb says:

      Wouldn’t doubt it. I have (mostly former) evangelical friends who would never support for president a man who is immoral and degenerate, a pathological liar and proven thief, but abortion is the most important issue in their lives. They really do think that Trump is God’s flawed tool, sent here to overturn Roe. Given that ardent belief, of course they would attack and troll Emptywheel. As far as bots, placing Kavanaugh on the SCOTUS is the only chance the Republican Party and Russian leadership have of getting these evangelicals to vote in November; thus bots have their marching orders: exterminate!

    • Doctor My Eyes says:

      I suggest it’s not about being bothered so much as about understanding the levers of power.  This is a y-u-u-u-g-e one as far as consolidating power.  I feel we freedom-lovers keep failing to understand how thoroughly those who would destroy us focus on power. In other words, the trolls and bots are being strategic rather than emotional. They do not care about right and wrong, truth, or ideology.  They know that the constitution and laws do not matter a whit, what matters is power. Roy Cohn:

      Don’t tell me about the law, tell me who the judge is.

  8. AndTheSlithyToves says:

    @Rayne — Lots and lots and lots of money riding on this nomination. Did I mention money? Think NRA and sports betting gratitude as a start.

    • earlofhuntingdon says:

      There might be, but it rests on the decisions that Brett and his conservative brethren might render.  The sports betting on his nomination is peanuts compared to deregulation and removing restraints on electioneering, gerrymandering, civil and voting rights, ad nauseum.

    • Rayne says:

      If you have any links to articles about Kavanaugh and sports betting I would appreciate it greatly if you could share them here.

      Kavanaugh’s massive debt incurred buying sports tickets sure looks suspicious. How that debt was paid down so quickly needs thorough investigation.

  9. orionATL says:

    i am a believer in the power of impeachment and removal as a tool to improve the willingness of a supreme court nominee to candidly discuss his/her views on important public matters when questioned by senators.

    the white house’s withholding of tons of kavanaugh documents seems an excellent foundation for an impeachment trial in the house, and demonstrates as well to the corporate powers in this country that they can’t run over us.

    • Charles says:

      This suggests another, complementary strategy: contact House members and candidates and ask them to support a move to impeach Kavanaugh on the grounds that Trump is an unindicted co-conspirator (and maybe even under foreign influence); also, of course, the past possible financial corruption and perjury.

      While there won’t be enough Democrats to remove Kavanaugh from office, an impeachment investigation would force the review of Kavanaugh’s background that the Senators are now denying. It might also in effect paralyze Kavanaugh, since the Court does not like having a light thrown on the character of its members. Just as FDR’s Court Packing plan did not succeed, but did end the Court’s attacks on the New Deal, impeachment of Kavanaugh could force the Court to back away from the extreme politicization that has made it so offensive to anyone who cares about the judiciary.

      • Bob Conyers says:

        The first step is to win at least the House and subpoena Cavanaugh’s records.

        If, as some people suspect, there is something significant he is hiding, it’s worth knowing. Trump is trying to block access via executive privilege, but he may not be in a position to fight that battle before long.

        There is also potential in his fishy debt payoff, and if he won’t document where he got the money, the House can fight to open the books.

      • orionATL says:

        a fine idea.

        political pressure can take all kinds of form, including looking over your shoulder at a dem house and then starting to pressure the white house.

      • Rayne says:

        Why not begin an impeachment movement right now, given his suspected false statements to the Senate in 2006? Why wait for him to be confirmed when he will begin to do damage? Why not go after him right now — perhaps even after his law license — which may encourage him to remove himself from consideration?

        • Kim Kaufman says:

          Late to the party here but also impeach Clarence Thomas for his lying and also Jay Bybee, who I believe my Senator Dianne Feinstein voted for.

          • Rayne says:

            Hope somebody’s been keeping track of Thomas’ conflicts of interest because his spouse can’t control herself. We’re all entitled to our opinion but she goes out of her way to push the boundaries on influence.

  10. Doctor My Eyes says:

    [Ugh–no editing buttons, thus the clumsy format.]

    It is quite possible that Kavanaugh is a war criminal, if one is interested in looking back for a moment. Certainly his nomination underlines the absolute unworkability of Obama’s disingenuous “look forward, not back” bullshit. To this day I can hardly contain myself when I remember that absurd denigration of the duty to investigate and prosecute war crimes. But I digress.

    Here is one of my heroes, Marjorie Cohn:

    “When the United States ratified the Convention Against Torture, we promised to extradite or prosecute those who commit, or are complicit in the commission, of torture. We have two federal criminal statutes for torture prosecutions – the Torture Statute and the War Crimes Act (torture is considered a war crime under U.S. law). The Torture Convention is unequivocal: nothing, including a state of war, can be invoked as a justification for torture.”


    “There is precedent for holding lawyers criminally liable for giving legally erroneous advice that results in great physical or mental harm or death. For example, in United States v. Altstoetter, Nazi lawyers were convicted of war crimes and crimes against humanity for advising Hitler on how to “legally” disappear political suspects to special detention camps.133 Both Altstoetter and the case of the Bush lawyers dealt with people who were detained during wartime, yet who were not prisoners of war. In both cases, it was reasonably foreseeable that the advice they provided would result in serious physical or mental harm—or even death to many prisoners. And the advice was legally erroneous in both cases.”

    While on the surface it seems unlikely that Kavanaugh was involved in giving as detailed advice on how to get away with torture as the likes of Yoo, the determination with which his records are being withheld makes one wonder. We know that Kavanaugh was involved in a 2002 meeting in which the right to counsel for the made-up category “enemy combatants” was discussed. We know that Leahy and Durbin accused him of “misleading” the SJC, and I think it was about his part in that meeting. We do not know what memos he may have written in which he aided and abetted the Bush administration in the commission of its war crimes.

    *[Edited to swap out too-long Google search link which may include tracking info. Citation for the document you’ve excerpted:

    Cohn, M. (2011). Advising Clients to Commit War Crimes with Impunity: An Unethical Practice. Seattle Journal for Social Justice, 10(1), 249-272. Retrieved from

    / ~Rayne]

    • Doctor My Eyes says:

      I’m still fuming over this “look forward not back”.  Here’s yet another example of why looking forward makes it obvious that we need to look back.  We the people delivered the Dems the means to investigate the war crimes of the Bush administration–the Presidency and Congress.  Had they at least conducted investigations, then we would likely at least have documentation of Kavanaugh’s role.  Had we actually looked forward, we could have seen that failing to look back may result in the nomination for the SC of a person who committed war crimes by aiding and abetting a regime in attempts to circumvent the absolute prohibitions against torture. It’s already happened with the CIA. The Dems, by failing to represent our interests, by failing to act decisively to bring the country back to a place we the people wanted, have empowered the continuation of GOP policies.  From 2008 to 2010, time after time the Dems had the rare opportunity to do what was politically expedient, morally correct, and pragmatically sound.  And still they failed to do the right thing. The Dems are not our saviors but perhaps will put an end to the worst aspects of Trump. I could scream, but instead I’ll go to bed.

      • holdingsteady says:

        DoctorMyEyes, Thanks for stating that.  Although I respect him greatly, I’ve been sitting here feeling furious with Obama at that same decision – to look forward, not back.  At the time I wanted to scream NO!  That’s not why/how you were elected!  I think I remember Obama saying just before leaving office that his biggest regret was to work so hard to try to cooperate with republicans.  Is it a silver lining that at least the increasingly rotten ugly kernel of the Republican Party has been exposed?

        Rayne, thanks for your wake up call.  I call our senator Lisa Murkowski all the time, I’ll call again today and remind her she claims to be a process person and that she is in a unique position to reassure the country how important that process is and suggest a delay until the NARA review is complete, end of October.  She ran as a write in candidate in 2010, I think it was, after being ‘primaried’ and progressive Alaskans who voted for her out of fear believed that meant she wouldn’t be beholden to republican party  pressure. (I wasn’t one of them, I voted for Scott McAdams, democratic candidate who could have one).

        Our other senator is dan Sullivan, a hopeless case.  I call him now and then, but feel a bit ill afterwards and they send such horrible form lettters a month later.

    • Doctor My Eyes says:

      Thanks for the edit.  I didn’t know how to do that.  And thanks for gathering arguments against this disastrous, politically motivated, SC candidate.

  11. earlofhuntingdon says:

    To repeat an observation the MSM fails to recognize – as does Sen. Grassley – among the elite lawyers qualified to sit on the Supreme Court, Brett Kavanaugh is only minimally qualified.  Grassley is being disingenuous about that and much more.

    Several sitting justices met or exceeded his academic performance and virtually all of them had greater professional accomplishments when nominated.  Three Justices were head and shoulders above him: Ginsburg, Kagan and Roberts.

    In fact, Kavanaugh’s record exceeds only that of Clarence Thomas, who was as controversial an appointment as he has been a Justice.

  12. Nigel says:

    Top trolling from the Senate Republicans:

    Hours before the start of hearings on Brett Kavanaugh’s nomination to the Supreme Court, the lawyer for former president George W. Bush turned over 42,000 pages of documents from the nominee’s service in the Bush White House, angering Senate Minority Leader Charles E. Schumer, who issued what is certain to be a futile call to delay the proceedings.

    “Not a single senator will be able to review these records before tomorrow,” Schumer (D-N.Y.) tweeted Monday evening.

    Taylor Foy, a spokesman for Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), responded that “our review team will be able to complete its examination of this latest batch in short order, before tomorrow’s hearing begins.” A few hours later, a tweet from the committee said that the “Majority staff has now completed its review of each and every one of these pages.”…

    They weighed them ?

  13. holdingsteady says:

    Oops, I meant to say Scott McAdams could have won (not one).
    Also, I’m watching the hearings on CSpan, such lies are being told, currently by mike lee, Utah. Sad.

  14. AndTheSlithyToves says:

    @ Rayne–Seem to be having some of the issues I’ve seen others here mention with respect to responding directly to your queries above about my posts, hence I will answer here. First, apologies for my stream-of-consciousness comments. When someone raises the hair on the back of my neck like Kavanaugh does, I tend to make an emotional leap from Point A to Point C, without connecting through Point B. Sometimes I just go completely off the rails and wind up in a verbal ditch, not knowing how I got there. Other than trying to be a smart ass about K’s Nats sports tickets debts, I’m not even sure why I brought up “sports betting” — which is small potatoes, as you note, compared to the future returns a bought and paid-for SCOTUS Judge can shower on corporate America. As a longtime DC resident and very familiar with all of dirty machinations around development (in particular all the sports stadiums) which suck up millions in public assets/funding/tax abatements/etc. and give nothing back to the public in return–that is unless you consider giving jobs to the corrupt/incompetent “public” officials who delivered those stolen assets, a public benefit. K’s whole ticket/debt thing stinks, and is emblematic of the rot in politics/government.

  15. Trip says:

    Kavanaugh knew that the email was stolen. If he didn’t, he is not very detail oriented, which is a negative for a judge. But he did ask “WHO SIGNED THIS?”. So he knew the email/letter wasn’t signed. Thus, why was he getting an internal unsigned Democratic party letter?

    He is changing the subject; calling this common. That is like Trump saying it’s totally normal to meet with Russians to get dirt.

    • Trip says:

      WTF does Kavanaugh being an alter boy or volunteering on private time to serve meals have to do with rejecting the Parkland father? Or the fact that his daughter was shot? His daughter was a good kid, killed by another kid with a gun, who went to the same fucking school. “Structured school” is the answer?

      This is not rehabilitating him. Lindsey is such an asskiss.

      Kavanaugh only follows the law, even though he knows so much about the common man and the impact, and yet Lindsey says it makes sense that a conservative judge would be picked in this administration, with that rightward perspective on the law vs Kagan. So then he doesn’t just follow the dry law without a political bent/perspective.

      Now he’s using Kavanaugh’s kids as a shield. What absolute and complete hypocrisy on civility, when a guy whose daughter was murdered couldn’t even get a handshake. Boo-fucking-hoo for Kavanaugh’s kid’s “trauma” in the gallery.

      Okay, I’m shutting up before my head explodes and I get in trouble here.

      This dude is so saccharine sweet, I’m getting diabetes.

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