Author: wfulawpolicyjournal

Inadvertent Lessons from Judge Kavanaugh’s Confirmation Hearing

Inadvertent Lessons from Judge Kavanaugh’s Confirmation Hearing

Heather Stinson

As the confirmation hearings for Supreme Court nominee, Judge Brett Kavanaugh, continue to heat up, with now three women coming forward proclaiming that there is a side to Judge Kavanaugh that should be known by the Senate Judiciary Committee before a vote as to whether he should be promoted to the highest Court, I am struck by two unrelated concerns.

First, is this notion that a person is only capable of being one version of themselves at all times, in all places, with all types of people. Many who have known Judge Kavanaugh in various capacities over the years have made statements or submitted signatures vouching for him, since in their experience they never witnessed any behavior that would give them pause or concern. In my previous role with the Independent Reconciliation Compensation Program (“IRCP”), which is tasked with compensating victims of childhood sexual abuse by clergy covering five different Diocese in New York, I learned quickly that people are in fact capable of being more than one type of person. Certainly, those who were victims of clergy sexual abuse also learned this lesson when they witnessed their abusers lovingly administering mass on Sunday after having raped them the night before. Many of those same victims were not believed because their families and friends in the parish could not square their good interactions with the parish priest with the allegations of abuse being lodged. Thus, we must dispense with the notion that Judge Kavanaugh, or any person for that matter, is only ever always good or always bad in behavior. After all, not even the vilest pedophile priest was abusive to all children in a parish, to some he was the embodiment of God himself. How can you get much better than that?

Second, is this idea that a man, giving a woman a job, is the definition of a woman’s rights supporter, and thus the inference goes, someone who would then be incapable of otherwise harming a woman—which has been raised as Judge Kavanaugh and his supporters push back on the allegations of possible sexual assault. Judge Kavanaugh has made a point, both in an interview and other statements, to praise his own record for how many female law clerks he has previously hired and later recommended to clerkships on the Supreme Court. It genuinely concerns me that women have a harder time obtaining certain caliber clerkships, even though women make up the majority of law students. Mostly though, when Judge Kavanaugh pats himself on the back for being so willing to hire women, to me it is as if he is admitting that he could have gotten away with not hiring women, or at least not so many women. So as these previous clerks vouch for him as a person who, based on their working relationship with him (which, it should go without saying, is not the context that is at question with the allegations) is incapable of sexually assaulting a woman, they are also admitting that they owe their careers to the benevolence of a man. It should concern the entire legal profession that for women, it is still men who are making or breaking their careers. Women obviously need both male and female mentors, and as such I don’t discount Judge Kavanaugh’s intention in hiring and mentoring women. Rather, I take issue both with the idea that a logical inference from his propensity to hire females is that he would be incapable of inappropriate behavior towards a woman in any context, and with the inadvertent admission that the legal profession is still a boy’s club, either because it is the boy who gets the job, or because it is the boy who graciously bestows the job to the girl.

As for the allegations themselves, my hope is that all involved, including Judge Kavanaugh, receive proper support and a fair hearing. Let us focus on what matters and dispense with distracting and erroneous ideas, such as the idea that a person is only ever all good or all bad. The purposes of the allegations being brought forward are to attest to the character and ability of a judicial nominee, period. If true, these allegations point to a side of Judge Kavanaugh that may disqualify him for this particular job. There are so few people who will ever sit in one of those nine seats it behooves us to make sure we ascertain all we need to know about a nominee before handing over that chair.

The Supreme Court Can Fix Qualified Immunity

The Supreme Court Can Fix Qualified Immunity

Daniel Becker

The doctrine of qualified immunity has come under increasing scrutiny. While Justice Sotomayor has led the charge for reform at the Supreme Court level, lower federal courts have begun to call for a reevaluation of the doctrine. One court called the current application of qualified immunity “overprotective of police and at odds with the original purpose of section 1983.” On the Fifth Circuit, Judge Willett criticized “the kudzu-like creep of the modern immunity regime.” Critics point out that qualified immunity is extremely difficult for plaintiffs to surmount, which often results in no remedy being granted for violations of a plaintiff’s rights. Two simple tweaks to qualified immunity may be able to bring the doctrine back to its roots and allow the validation of violated rights.

Courts apply a two-part test to determine whether an officer is entitled to a grant of qualified immunity. The first part of the test asks whether the officer’s conduct violated a constitutional right. The second part of the test is to determine whether the law was clearly established at the time such that the officer should have known that the conduct was unlawful. The purpose of qualified immunity is to protect officers when they act in tense situations where the law has not provided clear guidelines. Thus, qualified immunity is granted unless the officer violated a clear constitutional right and the officer’s conduct was clearly established as unlawful at the time of the incident.

Ideally, a growing body of case law would establish what conduct violates constitutional rights and would slowly eliminate the gray areas in the law. This, however, is not the case. The Supreme Court does not mandate that courts answer whether a constitutional right was violated. Courts often find it easier to decide that the law was not clearly established in a given case, instead of first finding that the conduct was a constitutional violation and then finding that it was not clearly established. Thus, the growing body of case law, which would gradually eliminate some of the legal gray areas around constitutional violations, never grows. This is precisely the point Judge Willett made in his concurrence. Avoiding the first test necessarily forces the stagnation of the second test because the law will never be clearly established. To fix this stagnation problem, the Supreme Court can mandate that lower courts apply both prongs of the test to all cases, which they were required to do from 2001 until 2009.

Another potential solution to the difficulty of prevailing on a claim that constitutional rights have been violated is for the Supreme Court to restore the ability of courts to examine the intent of the officer. This would move the qualified immunity from an objective analysis based on what a reasonable officer would do to a subjective analysis based on the officer’s intent when he performed an action. For example, the Supreme Court sustained a qualified immunity defense where an officer killed the driver of a fleeing car. The car was about to hit a spike strip when the officer opened fire. The officer would later tell his superior officer “How’s that for proactive?” Because qualified immunity is an objective analysis, these words could not be used in the Court’s legal analysis. Under a subjective analysis, however, those words could show the reckless disregard the officer had for the law and thereby bar him from successfully asserting qualified immunity.

Qualified immunity is an important doctrine. It tries to balance the interests of officers in performing their duty without fear of legal consequence, the interests of citizens in the protection of their constitutional rights, and the interests of society in law enforcement and protection from crime. The courts increasingly appear to have skewed that balance in favor of law enforcement. Spurring the growth of a body of case law to establish when conduct violates the constitution and allowing courts to look at the subjective intentions of officers would go a long way toward fixing the doctrine.

Drama in the Senate Over a Very Boring Law: The Presidential Records Act

Drama in the Senate Over a Very Boring Law: The Presidential Records Act

Zachary Harris

There has been extensive drama this week in the United States Senate over the nomination of Judge Brett Kavanaugh to the Supreme Court. When the Senate considers a nominee, they typically review documents from the nominee’s career. These documents must undergo an extensive process before they can be released. Senate Democrats claimed the process for releasing the documents was a partisan “sham” meant to prevent the American People from getting “the full truth.” Republicans say the process is meant to speed the release of documents and allow Senators more time to review them. They claim the process is prescribed by the Presidential Records Act.[1]

The Act, first passed in 1978, governs the storage and release of Presidential Records. There are six categories of documents which the outgoing President can ask not be released for up to twelve years following his departure from office. Many of the disputed documents fall within these categories. Importantly, the former President can waive this restriction at any time and allow the documents to be released prior to the twelve-year expiration.

At issue with Kavanaugh’s nomination are thousands of documents created during his tenure in George W. Bush’s White House, where he served in the Counsel’s Office, as an Assistant to the President, and Staff Secretary. The National Archives, which stores all of a former President’s documents, says they have in their possession “the equivalent of several million pages of paper and email records related to Judge Kavanaugh . . . .” By comparison, during the confirmation of Justice Kagan, they released 170,000 pages of documents; for Chief Justice Roberts, only 70,000.

The process for the National Archives to review and release the documents is extensive. First, staff review the material and remove personal documents like diaries and journals. Next, any documents which fall within the six exceptions undergo further review. The Archivist collects these documents and gives notice to the President under which the documents were created and the current President. Both have thirty days to determine whether to assert any sort of privilege over the documents, like attorney-client privilege or executive privilege.[2] If both Bush and Trump waive privilege, then the documents head to the Senate for their use. If either asserts a privilege, however, the Senate would then have to sue to secure the release of the records.

This process takes a tremendous amount of time. There is a workable solution to speed things up, however. The former President, and the people he designates, have immediate access to the documents. They can conduct their own review and waive privilege before the National Archives finishes their review. This is precisely the arrangement Senator Grassley and President Bush’s representative, attorney Bill Burck, came to. President Bush requested the entire collection referencing Brett Kavanaugh and had his representatives review the documents. Some documents they deemed to be personal, outside the scope of the Senate hearings, or protected by privilege. They sent these documents back to the National Archives to review the documents under their process. Other documents did not need any protection and could be released publicly. For these documents, they waived privilege (President Trump followed suit) and released the documents to the Senate with no restrictions.

Some of the documents were closer calls. They were not clearly privileged but were not clearly ready for public release. The documents fell within the six PRA exceptions. To avoid subjecting each document to a lengthy privilege analysis, Bush’s team agreed to expeditiously review the collection for the Senate’s use only. They agreed to provide these documents to the Senate on a condition of confidentiality. If a Senator wanted to release the document, they would ask President Bush to waive privilege. If President Bush agreed, the document could be released, if not, the document would go through the standard National Archives process which was happening concurrently.

The problem is timing. The National Archives process takes too long for Senators to review the documents before Kavanaugh’s confirmation hearing—assuming both Bush and Trump waive privilege. If either does not, an even longer court battle would begin. The alternative, however, places President Bush—and more troubling to some, Bill Burck, a colleague of Brett Kavanaugh—as the gatekeepers to what documents the Senate is entitled to review and release.

Whether the process was effective remains to be seen, but it was not an egregious departure from the law and likely found its roots not in partisanship, but in convenience.

[1]44 U.S.C. 2201 et. seq.

[2]74 FR 4669

The Beginning of the End for Chevron Deference?

The Beginning of the End for Chevron Deference?

Daniel Becker

The nomination of Judge Kavanaugh to fill the seat of the recently retired Justice Kennedy has set court watchers abuzz. Opinions have been written on the consequences of this change for abortion rights, gun rights, and presidential power. It would be unwise, however, to overlook a potential area of agreement between Justice Kennedy and potential Justice Kavanaugh: Their mutual skepticism of Chevron deference. Judge Kavanaugh’s elevation to the Supreme Court could add one more crucial vote to overturn or rework Chevron and mark a fundamental change in the Court’s deference to executive agencies.

Chevron deference, named after Chevron v. Natural Resources Defense Council, creates a two-step analysis of executive agency regulations. First, a court must determine whether the statute the agency is interpreting is ambiguous. If yes, then the court must determine whether the agency’s interpretation is reasonable. If the agency’s interpretation is reasonable, the court will defer to the agency. In extraordinary cases, courts have also applied a “major rules” test before engaging in Chevron analysis. The major rules test, or Chevron step 0, prevents agencies from issuing rules on major topics unless Congress clearly indicates the agency should resolve the issue. If Congressional intent to delegate to the agency on such a large question is absent or questionable, the Supreme Court will interpret the law itself without deferring to the agency.

Justice Kennedy, in one of his last opinions before announcing his retirement, expressed his skepticism of Chevron deference and how it was being applied in lower courts. Justice Kennedy wrote that “given the concerns raised by some Members of this Court it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.”[1] His concurrence indicates that he saw serious separation of powers concerns with the way lower courts were applying Chevron deference.

Judge Kavanaugh appears to share Justice Kennedy’s skepticism of Chevron. One potential way for him to limit Chevron deference is to expand the major rules doctrine, which he has indicated a willingness to do. When confronted with the FCC’s reinterpretation of the Communications Act of 1996 to allow it to regulate the internet as a utility, Judge Kavanaugh dissented. Writing for himself, he would have held that the FCC did not have the authorization to make such a wide-ranging reinterpretation of its own statute. Foreshadowing Justice Kennedy’s concurrence in Pereira, Judge Kavanaugh found it a violation of the separation of powers to allow the FCC to issue such a sweeping reinterpretation of their own regulatory authority without action by Congress. His analysis relied on a strong interpretation of the major rules doctrine. Because the FCC reinterpretation was a major rule, and because the FCC had not received clear Congressional authorization to issue the reinterpretation, the rule was invalid.

Another potential reworking of the Chevron standard is to redefine what the Court will accept as a “reasonable” interpretation of an agency’s statute. Judge Kavanaugh has also expressed a willingness to limit what agency interpretations a court will consider “reasonable.” Chevron deference allows agencies to interpret vague statutes as long as the agency interpretation is a reasonable construction of the statute. In White Stallion Energy Center, LLC, for example, the EPA interpreted a statute to allow them to regulate electrical utilities without consideration of costs. The statute made no mention of costs, only that the agency could do what was “appropriate.” The D.C. Circuit upheld the EPA regulation. Judge Kavanaugh, however, dissented. It was unreasonable for the EPA to adopt a regulation which cost $9.6 billion dollars by the EPA’s own estimates without taking those costs into account, contrary to what the EPA and the majority said. Redefining what is “reasonable” marks the other potential path for a future Justice Kavanaugh to push the Court to limit Chevron deference.

A future Justice Kavanaugh would likely be one more vote to alter Chevron deference. The two paths outlined here, an expansion of the major rules doctrine and a change in what agency interpretations courts will accept as reasonable, would limit the circumstances agencies are entitled to Chevron deference without completely eliminating it. A more aggressive Supreme Court could eliminate Chevron deference entirely, as some state courts have done. Given the role Chevron plays in judicial evaluation of agency regulation, however, alteration seems to be more likely than abolition.

[1] Pereira v. Sessions, 585 U.S. ___ (2018) (Kennedy, J., concurring).

 

Women’s Reproductive Rights: One Step Forward, Two Steps Back?

Women’s Reproductive Rights: One Step Forward, Two Steps Back?

Briana Whalin

The day Justice Kennedy announced his retirement, a sadness washed over many Americans. Kennedy’s retirement, for those who are not politically conservative, felt like the last pillar of hope falling. After losing the White House to our current administration, moderates and liberals looked more than ever to the Supreme Court to be the voice of reason; a saving grace. Now, Kennedy’s retirement threatens to transport America’s public policy back decades.

Kennedy was initially nominated as President Reagan’s second choice. Reagan’s first nomination, Robert H. Bork, was rejected during his Senate confirmation hearing after his personality and ideology became too divisive in the eyes of the Senate. Justice Kennedy stood juxtaposed to Bork as the less conservative and more amenable choice. Soon after his nomination, he was sworn in as a Supreme Court Justice on February 18, 1988.[1]

Throughout his years on the Court, Kennedy gained the reputation as the “swing-vote” Justice.[2] His record stands as a pattern of siding with liberal Justices on individual rights questions and with conservative Justices on everything else. For example, he voted with conservative Justices on issues concerning campaign finance restrictions and gun-ownership rights.[3] However, he sided with liberal Justices on more than one occasion and often on landmark and divisive individual rights cases. These cases include, but are not limited to, decisions such as Obergefell v. Hodges and Planned Parenthood of Southeastern Pennsylvania v. Casey. Kennedy’s decision in these particular cases made him into a personified judicial barrier and voice or reason in the Court for liberal­-leaning Americans by ensuring protections for LGBTQ and Women’s Reproductive rights.

Now, looking forward, we await a new appointee from an administration bent on appointing an ultra-conservative Justice who will help overturn Roe v. Wade and restrict individual rights in the name of conservative beliefs and religious freedom. As a result, many women are seriously concerned that the Casey “undue burden” standard[4] will be restricted to the point of a virtual ban on abortion or a true overturning of Roe. These fears are fully justified as Pro-Life outlets are praising Kennedy’s retirement as an opportunity to overturn Roe[5] until the Court becomes a liberal majority again, which in the context of the Supreme Court could mean decades.

Further, let us remember: reproductive rights issues are public health issues. I have been fortunate to meet one of the plaintiffs in Roe and their experience makes it clear that overturning a woman’s right to a safe and legal abortion means forcing women to have dangerous and life-threatening abortions. The plaintiff in Roe that I met was forced to go out of the country, to a place where they did not speak the language, with a piece of paper with an address scribbled on it, to meet a doctor they had never met, in a place they had never been. Forcing women into this position is dangerous and again, is a public health issue. Abortions will happen regardless of its legal status in the United States as it did before Roe. Regardless of whether it is a virtual ban or full ban that may happen, all we can hope for is that the Justices see this as a public health issue to protect women and not a religious or political crusade.

[1] Anthony M. Kennedy, Oyez, (July 1, 2018), https://www.oyez.org/justices/anthony_m_kennedy.

[2] Brent Kendall & Jess Bravin, Justice Anthony Kennedy Defined His Career at Center of Biggest Decisions, Wall St. J., (July 1, 2018), https://www.wsj.com/articles/supreme-court-justice-anthony-kennedy-announces-retirement-1530122570. (Kennedy himself has said that he hates this moniker, commenting at a Harvard Law School graduation that, “[t]he cases swing. I don’t.”).

[3] Id.

[4] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

[5] In an interview with NPR, the President of Students for Life, Kristan Hawkins, praised Justice Kennedy’s retirement as “a day that we’ve been waiting for” and further commented that “[o]ur goal in the pro-life movement has always been to make abortion illegal and unthinkable.” Sara McCammon, What Kennedy’s Retirement Means For Abortion Rights, Nat’l Pub. Radio, (July 1, 2018), https://www.npr.org/2018/06/28/624319208/what-justice-kennedy-s-retirement-means-for-abortion-rights.

Thank You, Justice Kennedy

Thank You, Justice Kennedy

Heather Stinson

Justice Kennedy is in the news due to his recent retirement announcement. Once again, many of those speaking or writing about him will mischaracterize his jurisprudence. To most, his voting patterns seem erratic and unpredictable. Yet, after all these decades, more than anyone else on the Court, Justice Kennedy has been uber-consistent and reliable. You would think that more people would better understand him, although a few seem to get it, as evidenced in the titles of some books regarding his jurisprudence. See, here, here, and here.

I became familiar with Justice Kennedy, like many law students, during the first few weeks of Constitutional Law. My professor introduced him to us by saying, “now for all of you libertarians and freedom lovers in the room, you are going to love Justice Kennedy,” and love him I did. His votes were on point with how I would have personally sided on each issue. More than that though, his words swept me up and for the time it took to read his opinion(s), I felt a sense of hope and optimism in the overall good of people. He made me love our Constitution, giving me a feeling that the structure and order it provided existed in perfect harmony, so as to preserve as much freedom as possible.

Many become confused over Justice Kennedy’s voting patterns; one minute he is authoring opinions that make him appear reliably conservative, and the next minute he is penning prose that would make most conservative voters cringe. I must admit, I too cringed when I first read the language he used in Obergefell v. Hodges: what he referred to as “Principles”. While I agreed with his vote, I was confused by his method of Constitutional Law and wondered if I had inadvertently wandered into a philosophy class. While I still have reservations about his methods, I can at least appreciate that to Justice Kennedy there is a point to the Constitution. There are, of course, the words and their dictionary definitions (where most conservatives begin and end), but there is also meaning behind the words chosen, the purpose of crafting the whole document in the first place. To Justice Kennedy, it’s not that the Constitution is ‘alive,’ as many on the left like to view it-subject to modern interpretation, with an updated dictionary. Rather, it is more like the original words and structure point to the Founders hope in penning it. Justice Kennedy simply showed us the fine tension that must exist between federal and state, and between state and person, to ensure that enough space exists in the in-between for breathing, which is a necessary requirement for life, and liberty.

It is ironic, that so many conservatives now feel excitement about the chance to get a true Constitutionalist onto the bench in his stead. Justice Kennedy is nothing but a Constitutionalist. It is also interesting that his votes are tracked, as if the Court has sportscasters, always trying to figure out his next move. I can hear them now saying, “this season he is batting conservative, with only two fly balls out in Left-field.” I can’t imagine how frustrating it has been to be known as some sort of watered-down, unreliable conservative, whose only purpose on the Court is to be persuaded to swing one way or the other. As it is, no one seems to know how to mention his name without also calling him the “swing vote.” See here and here, for a few recent examples.

History should not remember Justice Kennedy as a swing voter, a moderate, or a centrist. All of those descriptions fail to see him for what he has been, a major disappointment. He spent his career disappointing some side of the aisle every day. What I wouldn’t give to have another disappointment of a jurist put on the Court to take his place! We need jurists who have no cause, but the cause of liberty, as defined by the Constitution. Jurists whose personal beliefs and opinions are left at home while they handle the one piece of paper that we must all share. Justice Kennedy showed me that the structure of the Constitution whispers its function. He heard the whispers and shared them with us, and for that, I am grateful. As for the future appointment to the Court, all we can hope for are a few Congress men and women who will follow Justice Kennedy’s example, and be disappointments.