Political Potpourri, 9/10/18

The Good

1

Heather Mac Donald, in “The Diversity Delusion: How Race and Gender Pandering Corrupt the University and Undermine Our Culture,” notes that, “as of early 2018, 79 judges had issued rulings against schools’ rape trial procedures” adopted in conformity with the Obama administration’s dictates.

She says a 2006 University of Virginia survey found “that only 23 percent of the subjects whom the survey characterized as rape victims felt that they had been raped” …

Mac Donald notes that campus sexual-assault policies often assign “wildly asymmetrical responsibilities and liabilities.” In campuses’ alcohol-saturated hookup culture, men are assigned the Victorian role as guardians of frail females’ virtue: If he and she are drunk, she typically is absolved of agency and he is accountable for both of their behaviors. Yet, contradictorily, a core tenet of academic progressivism is that the differences between men and women are not innate, they are “socially constructed,” having nothing to do with biology. Never mind various cultures’ centuries of experience with laws and courtship rituals developed to tame the male libido.

George Will, defending Besty DeVos’s revision of Department of Education rules on handling of campus sexual assault complaints — which have been widely mischaracterized so egregiously that “bad faith” is almost the only explanation.

 

2

I asked the senator from Kentucky if his record on judicial appointments, including the decision to hold open the seat vacated after Scalia’s untimely death in February 2016 until after the presidential election was the most important part of his legacy as a senator. “I think it’s the most consequential series of things that I’ve done that have the longest impact on the country,” he answered. “In the legislative process,” he continued, “there’s not much you can do all by yourself. The one thing the majority leader can do that no one else can do is the schedule, what you will do or what you will not do. I think the decision not to fill the Scalia vacancy was the most consequential decision of my career. And I think the follow-up on that, to not only fill the Supreme Court vacancies, but put in place men and women [on the federal courts of appeals] who believe that the job is to interpret the law into as many places as we can, particularly at the circuit court level, for as long as we’re in the majority is the most important thing I will have been involved in in my career.”

Hugh Hewitt, Mitch McConnell has saved the Constitution.

For the record:

  1. I’m deeply ambivalent about the precedent of sitting on a SCOTUS nominee without hearings. It doesn’t pass a smell test even if it’s not unlawful.
  2. But I’m grateful for the quality of Trump’s judicial nominees and that their judicial philosophies* are more congruent with my own than Merrick Garland’s presumably** is.
  3. “Saved the Constitution” is hyperbole, but the stakes were high, and the tendency to see SCOTUS nominees as having “an agenda” is a sad symptom of the how the court is perceived, with some justification.

 

3

The truth is that “settled law” is just a euphemism that jurists and legal scholars use to refer to Supreme Court precedent that is indeed binding – but only until a majority of the justices decide that it should be overruled. In the 2003 e-mail, Kavanaugh was largely right to say that the Supreme Court “can always overrule its precedent.” And that’s a good thing. The Supreme Court needs to have the power to overturn flawed constitutional precedent, as this is usually the only way to correct wrong constitutional decisions, short of using the extraordinarily difficult amendment process.

Few people, particularly on the left, pine for the return of Bowers v. Hardwick, the 1986 case in which a narrow majority upheld the constitutionality of anti-sodomy laws. The Court eventually overruled Bowers in Lawrence v. Texas (2003), which has since become something of an iconic decision.

Ilya Somin (emphasis added). Somin doesn’t mention boring but binding precedent upholding anti-sodomy laws years before Bowers v. Hardwick:

The first challenge to a sodomy law to reach the U.S. Supreme court was Doe v. Commonwealth Attorney of Richmond in 1976. That case challenged Virginia’s sodomy law as a violation of the right to privacy. For technical reasons, the Supreme Court was required to consider the appeal of this decision upholding the law (in most circumstances, the Court only hears cases it selects). Although the Court accepted neither written nor oral arguments, its memorandum upholding the law is its first decision in a sodomy challenge.

ACLU, Getting Rid of Sodomy Laws. The one sentence summary affirmation was binding authority, and it meant in effect that there wasn’t enough merit to the case against sodomy laws to waste any time explaining why.

My own position long was that all jurisdictions should repeal sodomy laws, but I couldn’t find an acceptable constitutional rationale (a free-floating right of privacy just doesn’t cut it for me) for striking them down.

 

The Bad

4

Jay Sekulow, tried to argue to Robert Mueller that Trump could not be asked to give an interview because he is a compulsive liar. They literally explained to Mueller how they conducted a mock interview with Trump, and he was so unable to tell the truth that they considered him mentally disqualified from testifying:

Jay Sekulow went to Mueller’s office and re-enacted the mock interview. Their goal: to argue that Trump couldn’t possibly testify because he was incapable of telling the truth.

“He just made something up. That’s his nature,” Dowd said to Mueller.

It seems somehow unfair to let somebody remain on the job as president because he’s such a compulsive liar he can’t be allowed to testify under oath.

Jonathan Chait

 

5

Publicity is bad when it attracts the dogged scrutiny of a special counsel along the lines of Robert S. Mueller III. The man isn’t perfect. But he is deeply experienced and impervious to distractions. Trump has loosed a rabid and foaming Rudolph W. Giuliani on Mueller, to no more effect than a Pekingese yipping at a Greyhound bus. With his patrician wealth, his Bronze Star and his sterling résumé, Mueller neither wants nor fears anything Trump can bring.

On the other hand, Mueller has obtained certain things that, I’d wager, lie at or near the root of Trump’s mania. No, not the sordid details of a porn-star payoff. Trump has been known to spill dirt on himself to the tabloids just to stroke his own ego. He could be the emoji for shamelessness.

I’m talking about Trump’s bank records , turned over last year by Deutsche Bank, which also coughed up $630 million in fines in 2017 to settle charges of participating in a $10 billion Russian money-laundering scheme. And I’m talking about the immunized testimony of Trump’s longtime chief financial officer Allen Weisselberg . If anyone knows the details of money (Russian or otherwise, licit or not) moving through Trump’s privately held businesses, it’s this guy. And I’m talking about Trump’s personal and corporate tax returns, the ones he has been so determined to keep private, which Mueller almost certainly possesses .

This is the forest, I’ll bet, from which the president’s increasingly nutty behavior is being shaken.

David Von Drehle. Von Drehle also speculates that Jared Kushiner wrote The Anonymous Op-Ed, as even Jared and Ivanka need an exit strategy.

 

6

In nations that have known the horror of dictatorship or foreign occupation, there are often long traditions of what Poland’s national poet once called “patriotic treason” …

In occupied countries, large public events can spontaneously take on political overtones, too …

I am listing all these distant foreign events because at the moment they have strange echoes in Washington. Sen. John McCain’s funeral felt like one of those spontaneous political events. As in a dictatorship, people spoke in code: President Trump’s name was not mentioned, yet everybody understood that praise for McCain, a symbol of the dying values of the old Republican Party, was also criticism of the authoritarian populist in the White House …

There can be only one explanation for this kind of behavior: White House officials, and many others in Washington, really do not feel they are living in a fully legal state ….

Leading members of Congress might resist invoking the 25th Amendment, which would of course be described by Trump’s supporters as a “Cabinet coup.” The mob — not the literal, physical street mob, but the online mob that has replaced it — would seek revenge. There may not be any presidential goons, but any senior official who signs his or her name to a call for impeachment or removal will certainly be subjected to waves of hatred on social media, starting with a denunciation from the president. Recriminations will follow on Fox News, along with a smear campaign, a doxing campaign, attacks on the target’s family and perhaps worse. It is possible we have underestimated the degree to which our political culture has already become more authoritarian.

Anne Applebaum, Washington feels like the capital of an occupied country. This rang very true to me.

 

Elsewhere

7

In the wake of reports about his predecessor’s systematically harassing seminarians in a beach house, Cardinal Wuerl suggested that it was nothing that couldn’t be solved with more vacation time.

… Wuerl has announced a six-week “season of healing.” No penitence, no accountability. Just an announcement that in six weeks, he expects his image to be rehabbed, and everyone else will have to move on. You weren’t healed during my season of healing? That’s on you, bub. As for me, it’s time for another retreat with the lads.

Michael Brendan Dougherty

Footnote

* I say “philosophies” in the plural because Brett Kavanaugh says he is an “originalist” while others insist he’s a “textualist.”

** I say “presumably” because we never got the hearings that would have identified his reportedly moderate philosophy.

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