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Friday, September 7, 2018


I am living in two worlds, and it is disorienting.  My mind is entirely absorbed by preparations for my Columbia class.  On Tuesday I begin what will be three classes – six hours – devoted to explicating the first ten chapters of Capital.  On my morning walks, I deliver little interior lectures, organizing my thoughts in a coherent narrative that weaves together literary theory, economic theory, English history, and ideological critique in a seamless, comprehensible series of lectures.  As I work in my head, I am oblivious of the world around me, and despite the dramatic nature of the material I am explicating, I am at peace with myself.

At the same time, the world is exploding.  I am so furious about the confirmation of Kavanagh that I can scarcely contain myself.  I hang on the responses to the anonymous NY TIMES Op Ed.  I watch Kamal Harris and Corey Booker light into Kavanagh, positioning themselves for the 2020 presidential race.  And of course, I kvell as Serena Williams blasts her way to the finals of the U. S. Open.

The New York trip was a greater physical effort for me than I anticipated.  It is clear that I shall need a day or two to recover after each expedition.  I suppose at eighty-four I should have been prepared.  Todd, a youthful whippersnapper in his late seventies, is off to Mexico, having returned from Chile in time for our class.  Ah, youth.


David Palmeter said...

"Oh, to be 70 again." ~ Oliver Wendell Holmes, Jr., upon seeing an attractive young woman.

marcel proust said...

Ah, cruel disillusionment. I thought my mother had coined that phrase!

LFC said...

Listening on the radio this a.m. to Akhil Amar's testimony, I think it's possible -- not likely, but possible -- that Kavanaugh will turn out to be a pleasant surprise on certain issues. That said, I would vote against him if I were a Senator. He's obviously qualified by experience and ability to be a Justice, but he would likely further imbalance an already ideologically right-wing Court and in the process solidify a conservative majority, with bad effects in key areas of the law. Reproductive rights, w Roe already having been weakened significantly over the years, would seem to be perhaps the most immediate danger here.

Btw, and with all due respect, I think it's a little bit unfortunate that you are rehearsing lectures on Capital to what I presume is a fairly small group of students. Surely it would be better to be rehearsing ways of encouraging or forcing them to actually do the reading and engage in discussion themselves by asking them pointed questions (or e.g. asking them to react in brief writing to certain questions beforehand) -- that way they are more likely to learn something, I would suggest. After all, they can get your lectures on Marx on YouTube. Presumably they are paying their Columbia tuition to get something they couldn't get otherwise, namely a quasi-Socratic (for lack of better phrase) engagement with the material with knowledgeable professors as guides, rather than you and Prof. Gitlin talking and them simply listening the whole semester.

MS said...

(M.S., Part One)

I watched a good deal of the Senate hearings on Kavanaugh’s nomination. He is undoubtedly extremely knowledgeable about the law, knows and can refer to the precedents with agility, and is very articulate and astute. Overall, I would say he is better qualified than Justice Gorsuch was. He is also personable, has a commendable commitment to his family, and has admirably volunteered his time to civic and charitable causes. It is almost a far gone conclusion that he will be confirmed.

That said, there were, however, a number of his answers that I thought were disingenuous and gave me pause. First and foremost was his explanation by what he meant in the email that Senator Booker insisted on disclosing, in contravention of the Committee’s rules regarding documents that had been provided to the Committee as classified. In his email, he stated: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so.” On its face, this email appears to send the message that Roe is, in fact, not settled law because there continue to be Justices who disagree with the decision. This reasoning would also mean that only Supreme Court decisions that are unanimous constitute settled law.

When questioned by Sen. Feinstein - who, I thought, did a terrible job because she asked her questions as if they were on a laundry list provided to her by her aides, accepted whatever answer Kavanaugh provided without asking probing follow up questions, and then moved on to the next question on her list – Kavanaugh gave an answer crafted to avoid the apparent import of his email. He claimed that the email was in response to what I understand was a proposed press release that stated, in relevant part: “[I]t is widely understood accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.” Kavanaugh claimed that the assertion “I am not sure that all legal scholars ... “ was intended to correct what he regarded as an overstatement in the press release that “it is widely understood accepted by legal scholars across the board ... .” But the press release did not state that all legal scholars accept the proposition that Roe is settled law. Being “widely understood” means that it is less than “all legal scholars.” Moreover, while S. Ct. Justices are certainly authorities on S. Ct. precedents, they are not who are being referred to when people refer to “legal scholars,” i.e., law professors. The fact that three current Justices questioned the validity of the decision did not mean that the reference to wide acceptance among “legal scholars” was erroneous. Kavanaugh claimed that, given his propensity for accuracy, he wanted to be punctilious in pointing out that not “all legal scholars” agree that Roe is settled law. He did this to divert attention from what the real implication of what his email was – that, in his mind, it was not settled law because there were still some Justices who disagreed with it –with the implicit sub-text that all that is needed is to overturn it is to add more Justices to the Court who disagree with it. I found his rationalization that he merely wanted the press release to be accurate intellectually disingenuous – and that he knew it.

MS said...

(M.S., Part Two)

Regardless whether he would vote outright to overturn Roe, Sen. Hirono (who I thought did an excellent job of questioning Kavanaugh) pointed out that you do not have to overturn Roe to essentially gut it. You can just affirm the constitutionality of state laws that impose additional regulatory restrictions on obtaining an abortion, as long as the Court deems them not “overly burdensome.” Given Kavanaugh’s willingness to parse what he meant in his email, I am quite confident that he will rule that additional regulatory restrictions are not “overly burdensome.” This view is reinforced by his dissent in the D.C. Circuit decision relating to the abortion sought by the 17-year old Latino woman who had entered the country illegally, on the basis that it was not unreasonable that she be denied the abortion until a sponsor had been found for her in the United States with whom she could consult, indicating that he will support impositions placed in the way of women seeking an abortion. (His dissent, by the way, came suspiciously close to the time after his name was added to Trump’s list of potential S. Ct. candidates, which some have interpreted as sending a signal to Trump, “I’m your man.”) I thought Sen. Hirono also made an excellent point when she noted that his dissents demonstrated a pattern of disregard for the rights of employees and the less fortunate, notwithstanding his insistence that many of his decisions joining the majority showed the opposite. In a previous comment I noted his dissent in a decision finding that Sea World had violated OSHA with respect to an incident involving the death of an orca trainer.

Although I appreciated the necessity of his refusal to answer some questions that related to current events that involve issues that could require his adjudication should he be appointed to the S. Ct., I thought some of his responses were nonsensical and evasive. For example, one of the senators (I think it was Sen. Harris) asked him if he agreed with Trump’s statement regarding the Charlottesville protest that “I think there is blame on both sides.” Kavanaugh declined to answer in order to protect the independence of the judiciary. I thought, “How in the world could that issue, or one like it – regarding what Trump said – ever become a S. Ct. issue?’

Repeatedly, Kavanaugh asserted that he regards older precedents such as Brown v. Board of Education and Miranda v. Arizona as settled law, in part because of their chronological seniority. One question I was waiting for a Democratic senator to ask him – and I did not hear it asked (although my television reception was spotty at times) - was, did he regard the 5-4 2015 decision in Obergefell v. Hodges, overruling the constitutionality of laws disallowing gay marriage, written by his mentor Justice Kennedy, as settled law? Given that it is a recent decision and was not unanimous, I would suspect that this decision is may also be at risk, particularly in disputes involving the intersection of issues relating to freedom of religion and gay marriage.

In sum, his confirmation appears assured and we will have to be prepared for his joining and writing conservative leaning opinions for several decades to come, and the likely, if not reversal of Roe, its gradual dismantlement.

Michael Llenos said...
This comment has been removed by the author.
MS said...

The comfort of great poetry is to put into lyrical words sentiments that are otherwise difficult to convey. There is, for example, this:

Now as I was young and easy under the apple boughs
About the lilting house and happy as the grass was green,
The night above the dingle starry,
Time let me hail and climb
Golden in the heydays of his eyes,
And honored among wagons I was prince of the apple towns
And once below a time I lordly had the trees and leaves
Trail with daisies and barley
Down the rivers of the windfall light.

Fern Hill, by Dylan Thomas

And this:

There are things of which I may not speak;
There are dreams that cannot die;
There are thoughts that make the strong heart weak,
And bring a pallor into the cheek,
And a mist before the eye.
And the words of that fatal song
Come over me like a chill:
“A boy’s will is the wind’s will,
And the thoughts of youth are long, long thoughts.”

My Lost Youth, by Henry Wadsworth Longfellow

MS said...

(M.S., Part One)

As I sit in my study in the wee hours of a Saturday morning, I am musing about what I wrote above regarding Judge Kavanaugh’s testimony, and its implications with respect to an issue that has been the subject of recent threads to this blog - the parameters of moral and immoral conduct.

In my comment above, I am essentially accusing Judge Kavanaugh of committing perjury under oath – that he lied about what he intended by his email regarding whether Roe v. Wade was settled law (a question separate and apart from whether Roe v. Wade was correctly decided, a question he has refused to answer on the basis of preserving judicial independence). I maintain that the email is plain and unambiguous and asserts that, at the time he wrote it, he regarded Roe as not settled law because at least three sitting Justices believed it was wrongly decided, and that the decision was therefore susceptible to being overturned. Judge Kavanaugh knew, however, that if he admitted that this was what he meant – that Roe was not settled law – that he would lose the votes of Susan Collins and Lisa Murkowski and would never be confirmed for a seat on the Supreme Court. Therefore, he gave what I regard as a strained interpretation of that email – indeed, a mendacious interpretation of that email – claiming that he was not commenting on whether Roe was settled law, but on the number of legal scholars who believed it was settled law.

Now, I did not see the opening proceedings of the hearing, but I assume that Judge Kavanaugh was administered the following oath: “I swear to tell the truth, the whole truth, and nothing but the truth, so help me God.” Judge Kavanaugh is a devout Catholic. I do not question the sincerity of his religious belief. In his behavior he has demonstrated that he takes his religion seriously and makes a concerted effort to live up to its precepts – serving meals at a soup kitchen, volunteering his time to mentor young women in good sportsmanship in basketball, regularly attending church services. If what I assert is correct, then Judge Kavanaugh violated the oath that he took. So, one question that this raises is, does the fact that he is a devout Catholic, and lying under oath would be a sin, cast doubt on my interpretation of that email and on my assertion that he committed perjury?

The aspiration to become a Supreme Court Justice can be strong motivating force to lie about your actual jurisprudential beliefs. Appointment to the United States Supreme Court is a rare honor, one which memorializes its recipient in the history books and in the annals of the Supreme Court Reports for as long as this republic may exist. Many well qualified jurists and legal scholars who may have hoped to receive that honor, and were considered for it, through the vagaries of fortune have not been anointed, e.g., Judge Learned Hand (perhaps the most highly regarded jurist of the 1940s), Judge Richard Posner, Prof. Lawrence Tribe. And then there is Merrick Garland, who, with Al Gore, will be condemned to being a footnote in history as one of the many victims of life’s outrageous fortune. So, I can understand the pressure that the temptation to fulfill that aspiration can exert, even at the cost of slightly shading the truth.

MS said...

(M.S., Part Two)

But Judge Kavanaugh is a devout Catholic. And, in Catholicism, lying under oath is, I believe, a grievous sin. (I am not Catholic, and am aware that there is a hierarchy of sins, e.g., venial vs. mortal sins, and if I am incorrect in this understanding, I welcome being corrected.) Mark 8:36 and Matthew 16:26 state, “What does it profit a man if he gains the whole world, yet loses his soul.” If Judge Kavanaugh did lie under oath, as I contend he did, then, under Catholic doctrine, has he not put his soul in jeopardy? If so, is he required to confess his sin to his confessor, and can the confessor grant him dispensation for the sin? Is this how he would rationalize his conduct? (A cinematic reference. In the play and movie, “A Man For All Seasons,” Richard Rich, a former protege of Thomas More, commits perjury, testifying that during a conversation in his cell, More made a statement to Rich questioning the authority of Parliament to appoint Henry VIII as the head of the Church of England. This perjured testimony seals More’s fate. As Rich is leaving the courtroom, More notices that Rich is wearing an honorary medallion, the Medallion of the Red Dragon, and inquires what office does it represent. Chief Minister Cromwell responds that Rich has been appointed Attorney General of Wales. More looks at Rich and says, “For Wales. Why Richard, it profits a man nothing to give his soul for the whole world. But for Wales?”)

Alternatively, has Judge Kavanaugh, consciously or subconsciously, made the following calculus. “I believe that human beings are created at conception, and at that point are invested with a soul. Abortion at any stage therefore constitutes murder. If I tell the truth and admit that I believe that Roe v. Wade is not settled law, I will destroy my chance to be appointed to the Supreme Court and forsake the opportunity to exercise my authority and contribute to overturning that wrongly decided decision. Voluntarily telling the truth, and thereby allowing this murder to continue, is a far greater sin than lying under oath in pursuit of the more just cause of preventing this murder from continuing.” If Judge Kavanaugh did engage is such a calculus, whether one believes he acted morally or immorally will turn on whether you accept the premises of his analysis. But there is a further wrinkle to this – during his testimony he asserted that he does not allow his religion to influence his decisions; that he decides cases purely on his interpretation of the facts and the law. If he did engage in the calculus I have outlined, then he lied twice.