Category: Supreme Court

THANKS TO THE SUPREME COURT, GOP MOVES CLOSER TO MAKING BLACK VOTES NOT COUNT

The racial reckoning ignited by George Floyd’s murder entered its second year with a severe case of whiplash. In a rare bipartisan vote, Congress designated Juneteenth as a national holiday, marking the end of slavery 156 years ago. Two weeks later, the Supreme Court took a sledge hammer to one of this country’s premiere civil rights laws.

As if that were not enough to provoke metaphysical vertigo, many of the Republicans who voted for the Juneteenth holiday are hellbent on keeping the subject of racial strife – past and present – out of public school classrooms.  They insist that systemic racism ended a long time ago and teachers should not talk about it.

So here’s a subversive extra credit assignment for high school students:  Download the Supreme Court’s recent decision eviscerating the Voting Rights Act (VRA), and then, with a highlighter, mark every past and present example of systemic racism you can find. (Tip: don’t forget to read Justice Elena Kagan’s dissent, even if you have to buy a second highlighter.) When you return to school this fall, quietly drop your work on the teacher’s desk.  If you live in a red state and like your teacher, put it in a plain paper bag.

The VRA was all about systemic racism. Long seen as the crown jewel of the civil rights movement, this powerful 1965 law was designed to quash a multitude of systems that kept Black people from voting. The law’s teeth were divided between two chapters. One of them required a number of southern states with a history of discrimination to have any new voting law approved by the Justice Department. Between 1965 and 2006, that department blocked nearly 1,200 discriminatory voting laws from taking effect (P. 8 of Kagan dissent).  

Eight years ago, however, the Supreme Court tossed that entire chapter out, saying that “times have changed,” and that states no longer need Justice Department approval on voting regulations.  To no surprise of anyone paying attention, the dearth of new discriminatory voting laws had little to do with changing times.  It was all about preclearance from the Justice Department.  Within days of that 2013 decision, Caucasian-centric states started cranking out election laws making it more difficult for people of color to vote.  That production line continues to operate at full speed.

The only solace was the remaining VRA chapter on enforcement, the one that prohibits states from having any election practice that “results in a denial or abridgement” to vote on the basis of race. In theory, the courts could strike down laws that brought about that kind of a discriminatory result. Until now, that is.  In its final decision of this year’s term, the Supreme Court used an Arizona case to effectively slam the door on the law’s only remaining enforcement mechanism.

That 6-3 ruling came from Justice Samuel Alito and five fellow conservative justices, all rabid adherents of deciding cases by the precise text of a statute, rather than attaching their own meaning to a law.  Amazingly, they ignored the law’s singular threshold for finding an election regulation to be discriminatory, namely that it “results in a denial or abridgement” of voting rights on the basis of race.  Instead, the majority upheld two Arizona election regulations that resulted in a disparate impact on the voting rights of Blacks, Latinos and American Indians (P. 32 of Kagan dissent). Why? Because, said the court, there was no proof that those results were motivated by an intent to discriminate.  Congress amended the VRA back in 1982 to make it clear that the standard of enforcement of a voting law is whether it has a discriminatory impact on the basis of race, regardless of motive.  

At issue in the Arizona case were two new election laws.  One made it a crime for people to pick up sealed absentee ballots and deliver them to a collection box or polling place. The other voided all ballots cast by voters in the wrong precinct. There was evidence that both laws impacted Black, Latino and American Indian voters far more than it affected whites.  

But, but, but, say Alito and his textualist buddies, the state had a noble intent with these laws, namely to prevent voter fraud, although there have been zero instances of such fraud involving out-of-precinct voting and ballot collection.   

Although intent is not an element in VRA enforcement, it doesn’t take a think tank to figure out what is motivating an avalanche of state election restrictions aimed at making it more difficult for minority voters to cast a ballot.  Most people of color vote for Democrats. Keeping them away from the polls is good for Republicans.

In making their case for these two Arizona laws, GOP legislators openly argued that the restrictions are needed to damage the Democrats’ get-out-the-vote campaigns.  During oral arguments at the Supreme Court, Justice Amy Coney Barrett asked an attorney for the Republican National Committee why the party has an interest in the litigation.  The answer: the restrictions reduce Democratic votes and “politics is a zero sum game.”

In other words, the party of Lincoln is saying, in effect: “Nothing personal, Black people. We want to keep you from voting because most of you support Democrats. It’s got nothing to do with race.” The enormity of this court decision reaches far beyond Arizona.  The flood gates in every red state are wide open to unlimited obnoxiousness when it comes to keeping racial minorities away from the polls.  So far in 2021, 28 restrictive voting laws have been passed in 17 states, according to the Brennan Center for Justice.

There is a gravestone in a Hattiesburg, Mississippi cemetery that bares this inscription: “If you don’t vote, you don’t count.” According to The Nation, buried in that grave is Vernon Dahmer, a voting rights activist and Hattiesburg NAACP chapter president back in the 1960s. Just months after the VRA was passed, Dahmer died when his home was firebombed by Klansmen.

Fifty-six years later, the future of the Republican Party depends on making sure that millions of non-white voters don’t count.  

Even with Juneteenth as a federal holiday, systemic racism marches on. And on. And on.

CAMPUS FREE SPEECH ISSUES AREN’T WHAT THEY USED TO BE

Back in the heyday of the 1960s, when everything seemed urgent and salient, there was a righteous battle for academic freedom. As the decade drew to a close, a delightfully liberal Supreme Court declared that free speech does not stop at the “schoolhouse gate.” 

More than a half century later, the issue of academic expression is up for relitigation. Unlike their solid and compelling predecessors of yore, these new cases are, in keeping with the tenor of our times, petty and silly.

Before wading into the shallow waters of what passes as today’s version of educational free speech, it’s worth a brief reminiscence of the far more glorious struggle of the ‘60s.  As the decade began, many public colleges and universities prohibited students from engaging in any political activity on campus.  In 1964, the issue came to a head at the University of California at Berkeley. 

While distributing leaflets proselytizing against the Vietnam War, Berkley student Jack Weinberg was arrested and placed in a squad car. Within minutes, thousands of student activists surrounded the vehicle, immobilizing it for 32 hours while making speeches from its roof. That was the beginning of the Berkley Free Speech Movement. 

Over the next few weeks, Joan Baez showed up to sing “We Shall Overcome”.  Berkeley Free Speech leader Mario Savio uttered his infamous command for students to “put your bodies on the gears . . . when the operation of the machine becomes so odious, makes you so sick at heart, that you can’t take part.”  

After more than 800 students were arrested, many injured by police, a student strike shut down the campus until the administration lifted its restrictions on political speech.  Many other schools gradually followed course. For those that didn’t, the Supreme Court made it abundantly clear in a 1972 opinion that public colleges are a “marketplace of ideas” and that students and have a First Amendment right to express those ideas, regardless of how unpopular they may be. 

Meanwhile, a similar free speech movement was making its way through junior and senior high schools.  In 1965, then 13-year-old Mary Beth Tinker and her friends decided to protest the Vietnam War by wearing black armbands in their Des Moines, Iowa public school.  They were quickly suspended. That discipline was eventually declared unconstitutional by the U.S. Supreme Court. “Students,” the court wrote, “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  

Now flash forward 50-plus years, to what legal commentators are calling the most important free speech case since Tinker v. Des Moines.  Sometime next month, the Supreme Court is expected to decide the fate of a trash-talking middle schooler from Mahanoy City, Pennsylvania. Back in 2017, Brandi Levy was a 14-year-old junior varsity cheerleader who had just been turned down for a promotion to the varsity squad.

Stewing over the rejection, Brandi, of course, reached for her smartphone and composed a Snapshot message preordained to become a landmark free speech case.  With her middle finger raised, she uttered nine words destined to live in judicial infamy: “Fuck school, fuck softball, fuck cheer, and fuck everything.” Brandi was summarily suspended from cheerleading for one year. 

Needless to say, Joan Baez didn’t rush into Mahanoy City to sing “We Shall Overcome.”   And regardless of what the Supreme Court does with this case, you can be pretty sure it will not wax poetic about finding space for “fuck school” et al, in the marketplace of ideas.  

Meanwhile, from the professorial side of the classroom, comes this annoying trifle of a contention that teachers are somehow enshrined with the “academic freedom” to choose the pronouns they will use for their students. Court dockets are filled with teacher lawsuits insisting they have the constitutional right to refer to transgender students with pronouns and honorifics based on their birth gender (here, here and here).

Take, for example, Nicholas Meriwether, a philosophy professor at Shawnee (Ohio) State University.  As the semester began, Meriwether called on a student he assumed was male by using the honorific of mister.  The student, a transgender woman, sought out the professor after class and asked that he refer to her as Ms and use the pronouns she and her.  

That, Meriwether said, would be a problem.  As a Christian, the professor explained, he believes God created only two genders, and for him to use female honorifics and pronouns for someone born as a man would be a violation of his faith. Citing school policy prohibiting discrimination on the basis of gender identity, the administration ordered Meriwether to refer to the student as she, her, or Ms. The professor rejected the order on First Amendment grounds, sending the issue up a crowded federal flagpole of similar cases.

What a difference a half-century makes. In the 1960s, academic freedom was about the right of professors and students to have an open exchange of ideas.  It is now being subverted to mean that a teacher can ignore with impunity the very identity of a student.  

For God’s sake, Professor, just call the kid what she wants to be called! You’re a philosophy teacher, so teach it. Share with your class the foundation for your principle that gender is binary and unalterable. Invite your students to explore other thinkers – including Christians – who have a contrary opinion (here, here, here and here). Let the dialectic be part of the learning.  Meanwhile, use she, her or Ms when referring to the transgender woman in your class. It’s just a name, a title, and since it is hers, she controls it. This isn’t about you or your beliefs, it’s about the basic human decency of calling someone what they want to be called. 

It has been years since I’ve been in a classroom, but I seem to recall that a strong predicate for learning was a welcoming, respectful student-teacher relationship.  You don’t get there by using the word mister for a 19-year-old transgender woman, someone who has undoubtedly struggled with a level of transformational pain most of us will never comprehend.

So there you have it: two vastly different free speech movements, one in the 1960s and one in the 2020s.  We sang “We Shall Overcome” back then.  We obviously need a new anthem. 

How about: “We Shall Overlitigate”?

BUSING: AN UNCOMFORTABLE STROLL DOWN MEMORY LANE

Busing to achieve school desegregation has poked its head out of the ash heap of history. Just when we thought the next 16 months would be consumed with the Green New Deal, Medicare For All and the Mueller Report, comes this ghost of issues past, an oldie-but-not-a-goodie. 

What was undoubtedly intended as a metaphor for the generational and experiential gap between two Democratic candidates – Senator Kamala Harris and former Vice President Joe Biden – quickly mushroomed into something much more, namely the painful reality that America’s schools remain as segregated today as they were 50 years ago. 

Harris, in the first round of the party’s primary debates, went after Biden for his self-inflicted wound incurred by boasting about his good working relationships with long dead segregationist senators.  As the only black candidate on the debate stage that night, Harris made it personal, identifying herself as “that little girl” who was bused to a white neighborhood school 50 years ago in order to get a better education.  Had Biden and his old racist Senate colleagues had their way, Harris argued, she would have been stuck in an inferior segregated classroom.

The aftershocks from that debate are still being felt.  Biden eventually offered a rare apology for his remarks about working with the segregationist senators, but defended his position on busing, saying that he was never opposed to it on a voluntary basis, but abhorred the idea of the federal government forcing the practice on local school districts.  For her part, Harris noted how Biden’s defense was taken from the segregation playbook, the one that insisted the Civil War was about states’ rights, not slavery. 

Yet, asked after the debate whether she would support forced busing today, Harris initially said she would if states failed to desegregate its schools.  Days, later, however, she modified that position by saying she supported only voluntary busing, a stance not terribly different than Biden’s back in the 1970s. Alas, busing has never polled well. Welcome to a strong jolt of déjà vu, at least for those of us old enough to remember the political perils of busing.  

Through the first half of the twentieth century, public education in this country was structured around race.  Black schools were mostly run down and dilapidated with inadequate and inferior resources. White schools, for the most part, offered a vastly superior education.  The U.S. Supreme Court, in its 1954 landmark ruling, Brown v. Board of Education, said such a separated and segregated system was inherently unequal and, therefore, unconstitutional.  And then for the next 17 years, nothing much changed.  In response to that inertia, the Supreme Court, in 1971, went a step further and said segregated school districts needed to bus students to other schools in order to achieve a racial mix.  

That’s when all hell broke loose. The reaction to the judicial edict made Roe v. Wade look like a walk in the park. It wasn’t just the schools that were segregated back then, it was virtually every neighborhood of every major city in the country.  Through decades of predatory real estate practices such as redlining and blockbusting, this country was literally and figuratively divided by race.  Yet, the courts were limited to remedies involving only the schools since that was the legal predicate of the Brown case.  

Many white northern liberals, who cheered the court decisions because they saw them directed at the segregated south, went apoplectic when they learned their kids were about to be bused into a black neighborhood school.  There was major turbulence, ranging from riots to recall votes of local school board members, in places like Boston, New York, Detroit, Chicago and Los Angeles. Like Biden, many Democrats who supported busing as a concept quickly reversed course in response to constituent outrage.  

Eventually, as the makeup of the Supreme Court changed, and as the country’s angst over busing continued to grow, there came a series of partial reversals to court-mandated busing. By 1999 only 15 percent of the country favored busing for integration purposes. A few years later, the Supreme Court issued a decision that substantially reduced the circumstances in which local districts could use race as a basis of moving students from one school to another.  For all practical purposes, busing was nothing more than a bad memory of failed policy.

It was not, however, a failure for black children. The racial test score gap was cut in half for many black students. Longitudinal studies showed that black kids in integrated schools were far more likely to graduate from high school, get out of poverty and even live longer than their counterparts in segregated schools.  

Sadly, many of those educational improvements underwent severe setbacks as structured desegregation plans fell by the wayside. According to several studies, a number of school systems are more segregated today than they were a half century ago. Not only that, but black children are now more likely to grow up in poor neighborhoods and have lower achievement test scores than back in the busing days. 

None of this is surprising. Neighborhood schools have long been touted as the shining exemplar of American public education. Busing was seen as the enemy of that system.  Ignored in such thinking, however, is this fact: The ugly underbelly of neighborhood schools is a funding mechanism – the property tax – based on real estate values.  We have chosen an arrangement in which the quality of a child’s education is based on the income of their parents. As a result, we are left with a bifurcated system every bit as separate-but-inherently-unequal as the one condemned in Brown v. Board of Education.

In a far more perfect world, the remedy for centuries of post-slavery racism and bigotry would have been deeper and broader than simply busing kids from one segregated neighborhood to another. How about integrating the neighborhoods themselves?  How about equal funding for all schools, regardless of local property values?  

As Joe Biden said last week, in his ongoing attempt to extract himself from his busing brouhaha, “There should be first-rate schools of quality in every neighborhood in this nation.”  Since we, as a country, have never come close to such a standard, maybe it’s time to ask this question in the next presidential debate:  Would you support federal control of public schools in order to assure that all students have an equal opportunity to a quality education regardless of race or family income?  If nothing else, it might make busing look more palatable. 

WE INTERRUPT THIS RECKONING TO BRING YOU IN-JUSTICE KAVANAUGH

Not even a week-long retreat to the abundant beauty and tranquility of a Rhode Island seashore was sufficient to tune out the wailing cries of a wounded nation. Oh, the sunsets were spectacular, and the serenity of the waves rhythmically meshing with each other cast a rare, momentary spell of harmonic convergence. But the peaceful stillness of the moment quickly yielded to people and their electronic devices, all digitally connected to a world neither serene nor harmonious.

Waves pounding the shoreline were drowned out by the anxious mutterings of those monitoring the week’s top story. Try as you might to ignore them, select, key words kept bouncing along the shore, like seagulls stalking an incoming fishing boat. Kavanaugh. Ford. Trump. Grassley. Flake. FBI.

A woman deep into her eighties and seated in a wheelchair consulted her smartphone and then yelled, “Crap,” to her friends, explaining that Flake had just announced he would vote yes on confirmation. “What’s this world coming to?” she asked, without an answer.

Two locals stumbled out of a tavern one night and, adhering to the Rhode Island prohibition on pronouncing the “r” sound, demonstrated how everyone had their own takeaway on the Kavanaugh story. Said one to the other: “The mutha fucka couldn’t even get laid in high school.”

By week’s end, we – Melissa, my wife and Rhode Island guide, and I – bade a sad farewell to our Newport escape, and an even sadder adieu to the illusion that the United States Senate would do the right thing and keep a deeply flawed man off our highest court. Instead, we returned home to grieve over this maddening disorientation: Senators who found Christine Blasey Ford’s sexual assault accusations credible had rushed, in a surreal whirlwind of male anger, to make her alleged attacker an associate justice of the U.S. Supreme Court.

Now indelible in our collective hippocampus is the laughter and cheering of a Mississippi political rally as the president of the United States mocked and belittled Blasey Ford’s compelling testimony about an attempted rape. I will leave it to more knowledgeable moral philosophers to determine which is worse: a Supreme Court justice accused of youthful sexual abuse who lied under oath and displayed a demeanor of raging anger and partisan indignation, or a president who ridicules and makes fun of a sexual assault victim, and who has, himself, been accused of sexual misconduct by at least 16 women. Either way, we have them both, a disgustingly shameful package.

As we enter the second year of our #MeToo reckoning, it is painfully obvious that we have a split-screen approach to dealing with sexual harassment and assault. Outside the Washington beltway, accusations are now taken seriously, investigated thoroughly and the perpetrators are knocked off the highest of pedestals and shunned. Inside the beltway, not so much. In the most cynical of Machiavellian politics, ideology trumps sexual misconduct, provided you have the votes.

Stephen Wynn was a casino magnate. Charles Dutoit was the conductor of the Royal Philharmonic Orchestra. Peter Martins was the leader of the New York City Ballet. Shervin Pishevar was the founder of a venture capital firm. Matt Lauer was co-host of NBC’s Today Show. Russell Simmons was the founder of Def Jam Records. Leslie Moonves was the CEO of CBS. All of these men, and scores of others, were accused of sexual misconduct. They vehemently denied the allegations. There was no proof beyond reasonable doubt. But based solely on the credibility of the accusations, these men were forced out of their privileged positions. Indeed, there should be a high burden of proof to deny a man his liberty. But privilege can and should be denied on the basis of believable accusations

Sadly, that is not the way the political world works. If it did, Brett Kavanaugh would not be on the Supreme Court. Republican Senators, and even President Trump, found Blasey Ford’s accusations credible. (For example: Senators Charles Grassley, John Coryn and Richard Shelby.) But they all voted to confirm their guy because his ideological bonafides as a conservative judge outweighed the credible possibility that he is a sex offender.

This toxicity of placing politics above morality and decency has been decaying our republic for some time. Trump is Exhibit A of this phenomenon. He boasted about grabbing women by their genitals. He is a serial liar. He has had extramarital relationships with a porn star and a playboy centerfold. Yet, Trump is embraced by evangelical Christians only too eager to give the sinner-in-chief a pass because they like his policies.

We encountered the same perverted moral reasoning 20 years ago with Bill Clinton. Liberal and feminist leaders not only gave Clinton a pass on Monica Lewinsky, Paula Jones, Kathleen Willey and Juanita Broaddrick, they mocked and ridiculed his accusers, insisting it was all a “vast right wing conspiracy”. The accusations, however, were every bit as credible as those offered by Blasey Ford. Jones said Clinton exposed himself to her and asked for oral sex. Willey said he grabbed her breast and placed her hand on his crotch. Broaddrick said he raped her. In each case, there was corroboration from friends the women had confided in immediately after the alleged incidents. Gloria Steinem, one of the giants of the women’s movement, wrote an op-ed for the New York Times in 1998, defending feminists for standing with Clinton. She insisted – in the case of Jones and Willey – that he was guilty only of having made some “gross, dumb, clumsy sexual passes”, but that feminists stood with him because his policies were strongly supportive of women’s rights.

It is way past time that we remove the asterisk from all positions of political power when it comes to sexual misconduct. The #MeToo movement should not be gerrymandered to apply only to Hollywood moguls, business executives and media celebrities. The reckoning needs to encompass presidents, supreme court justices and others wielding political power. If we really want to heal our culture, and no longer tolerate sexual misconduct anytime, anywhere, then there can be no more passes for sexual predators on the basis of their political policy portfolios. #MeToo can be fully transformative only if it also applies to #ThemToo, powerful men at the highest levels of government.

KAVANAUGH RIDES THE RAPIDS ON TRUMP’S RIVER OF DENIAL

As Brett Kavanaugh continues to deny his way to the Supreme Court, we are witnessing the nauseating effects of Trumpian Justice, a bizarre jurisprudential model in which the vigor of denial obliterates any search for the truth.

There’s an amazing passage in Bob Woodward’s just-released book that perfectly captures the Republican game plan to beat back sexual misconduct accusations against the judge. The author recounts a conversation in which Trump offered advice to a friend who had acknowledged some “bad behavior toward women.” According to Woodward (Page 175), the president told his buddy never to show weakness.

“You’ve got to deny, deny, deny and push back on these women,” Trump is quoted as saying. “If you admit to anything and any culpability, then you’re dead. You didn’t come out guns blazing and just challenge them. You showed weakness. You’ve got to be strong. You’ve got to be aggressive. You’ve got to push back hard. You’ve got to deny everything that’s said about you. Never admit.”

This is the closest thing Trump has to a moral code. At least 16 women accused him of sexual misconduct. He called each one of them a liar. Then he was elected president. Denial worked well for him, and he has been championing it ever since. He was the only major Republican leader to stand by Alabama Senate candidate Roy Moore in the face of credible accusations that Moore molested young teenagers years ago. “He totally denies it,” said Trump in his endorsement of Moore. “You have to listen to him.” Even after former aide Rob Porter resigned over domestic abuse allegations from two ex-wives, the president stood by his man. “He said very strongly that he’s innocent,” Trump told reporters. “. . .you have to remember that.”

The Donald even carried his denial creed into foreign policy. Remember the Helsinki summit? Discarding his own intelligence agencies’ compelling evidence of Russian interference in the 2016 election, the president stood with the Kremlin, saying: “President Putin was extremely strong and powerful in his denial today.” He’ll take a good strong denial over facts any day, particularly if it advances his interests.

Right now, Brett Kavanaugh could not have a better denial mentor than Donald Trump. In pursuing his personal manifest destiny of a lifetime Supreme Court seat, the judge has stuck steadfastly to the Trumpian script. Responding to allegations of an attempted rape in high school and an incident a year later when he allegedly flashed his penis in front of a fellow Yale student, Kavanaugh used phrases like, “completely false allegation”, “this never happened”, and “a smear, plain and simple”.

No wishy-washy, plain vanilla denials for this guy. No, these were Trump-trademarked denials, filled with righteous indignation of steroidal strength. The judge didn’t merely deny the allegations, he “categorically and unequivocally” denied them. So strong were the denials that news organizations exhausted a thesaurus of adverbs expressing strength. Fox News had Kavanaugh “vigorously” denying the claims. In USA Today, he “forcefully” denied them. He “strongly pushed back” on NPR, “fiercely denied” the accusations in The Hill, and “strenuously” denied them in The Daily Beast.

Leave it to conservative Republicans to throw cold water on this culture-changing #MeToo moment. In their desperate rush to stack the court before the midterms, they have brought a year’s worth of momentum to a grinding halt. Prior to this sorry episode, we seemed to be on our way to changing the protocol for sexual misconduct claims. The accusers were to be taken seriously, respected and listened to. Thorough investigations were to be conducted. And any unwanted sexual contact was absolutely wrong.

For virtually every man so accused during the reckoning, there were thorough investigations that lasted weeks, if not months (examples: Leslie Moonves, Charlie Rose, Bill O’Reilly, Roger Ailes, Matt Lauer, Jeffrey Tambor). Many of the men accused of inappropriate behavior issued apologetic responses and went out of their way to respect their accusers, a huge cultural shift in tone from days gone by (examples: Lauer, former New Republic editor Leon Wieseltier, Geraldo Rivera, James Franco and Richard Dreyfuss). Compare, for example, Kavanaugh’s fortified denials to Charlie Rose’s response to multiple sexual misconduct allegations: “It is essential these women know I hear them and that I deeply apologize for my inappropriate behavior.”

It is now throw-back September – in an election year – and the retro-Republicans of the United States Senate appear hell-bent on ignoring sexual misconduct claims against Kavanaugh while bullying and disparaging the women who made them. It’s altogether proper to thoroughly investigate sexual impropriety accusations against a celebrity chef before letting him back into the kitchen, but if we’re talking about a lifetime seat on the Supreme Court, don’t waste time looking at the facts, just measure the guy for his robe and get him on the bench before the base heads to the polls.

Unless at least two Republican senators decide to put process above politics, Brett Kavanaugh will soon take his place on the bench of the nation’s highest court. There will be no FBI investigation into the accusations against him. Donald Trump and Mitch McConnell will take their victory laps. It will be left to the rest of us to sort through the ashes of this disaster. We must find a way to make sure that our values of gender equality, fairness and decency are never again torched in the public square, and that even the strongest of denials never trump an honest search for the truth. The first step in that journey begins on election day.

A SCRIPT FOR THE KAVANAUGH FINALE

Here’s a modest proposal for ending the Brett Kavanaugh melodrama: Strap down the judge with polygraph equipment and ask him about Christine Blasey Ford’s sexual assault accusations. If he fails the lie detector test – the same one Blasey Ford has already passed – his nomination is off the table. If he passes? Then he joins Clarence Thomas as the shamed-but-confirmed male caucus of the United States Supreme Court. Put the whole thing on pay-per-view and give the proceeds to a #MeToo organization, just like CBS is doing with Les Moonves’ severance pay.

Okay, as Jonathan Swift did with his Modest Proposal, I jest. Still, there is more poetic justice in that scenario than we are apt to see from Chairperson Charles Grassley and his 10 fellow white male Republican elves who control the Senate Judiciary Committee. Oh, to see the gnashing of all those pearly white conservative teeth over the sight of an originalist judge wired to a lie detector machine! Would the American Civil Liberties Union come to his rescue? The ACLU has long led the legal battle against polygraph testing in employment situations. On the other side? You got it: the conservative, originalist bar, including Kavanaugh and his Federalist Society buddies.

The far right has long adored lie detectors. Just ask Vice President Mike Pence. Only days ago, he offered to be polygraphed in order to prove that he did not write the anonymous New York Times op-ed that labeled Donald Trump amoral and unhinged. (Do we live in interesting times, or what?) Kavanaugh himself has waxed eloquently on the usefulness of lie detectors “to screen applicants for critical law enforcement, defense and intelligence collection roles”. Writing the decision in a 2016 D.C. Circuit Court of Appeals case, Kavanaugh called polygraph testing “an important tool” to keep undesirables out of significant jobs.

It may be an important tool to Judge Kavanaugh in the abstract, but now that it affects him personally, don’t expect to see him in a blood pressure cuff and skin sensors anytime soon. The polygraph is not going to resolve this issue. The question before the Senate is not about truth. It’s about votes. As long as the Republicans hold together, they can push the nominee over the finish line, and lock in a conservative majority on the court for a generation or more. As soon as two Republican senators jump ship, however, Kavanaugh is finished and Trump pulls out his Federalist Society list of reasonable facsimiles.

Meanwhile, this Capitol Hill political crisis has brought out hardball tactics eerily reminiscent of the ugliness that surrounded the Clarence Thomas-Anita Hill fiasco 27 years ago. The focus inside the beltway is much more about counting votes than addressing the meta issue of what happens to women who accuse powerful men of sexual assault.

The Republican boys club in the Senate has attacked Blasey Ford’s veracity and “suspicious” timing every day since the California research psychologist went public with her accusation. Overcome with their hunger to get their man on the court, this aging Senate fraternity of old white guys wants to know why these women wait so long to make their accusations. How many television appearances, books and op-eds by sexual assault survivors will it take for us to learn that women who speak up subject themselves to a whole new round of abuse that, in many cases, is worse than the original assault?

Last week at this time, Christine Blasey Ford was in the middle of her life: doing research, teaching classes, raising children. Following a torrent of death threats after her name was revealed, she and her family had to flee their home. She is unable to work. She and her husband are in an undisclosed location and the children are being cared for elsewhere. Why, indeed, don’t women speak up more often about this stuff?

Meanwhile, Grassley and his crew are busy planning the stagecraft of a Senate hearing, should Blasey Ford decide to appear. Mindful of the horrendous optics from the Anita Hill hearing, where the young law school professor was grilled by a gaggle of old white men, Grassley suddenly noticed that all of the Republicans on his committee are men. He said earlier this week that they may bring in a woman to interrogate Blasey Ford. Borrowing from their own rhetoric, the Republicans have had 27 years to put women on that committee. Why wait until the last minute?

Over at the White House, Kavanaugh is being thoroughly prepped for his testimony. I get the importantance of preparing a judicial candidate for testifying about various legal nuances, like saying, “Roe v Wade” is “settled law”, but declining to call it “correct law” so he can vote later to unsettle it. But how many more ways are there to say that he did not, in a moment of drunken abandon at the age of 17, throw himself on Blasey Ford, grope her, cover her mouth to stifle her screams and try to undress her?

It’s important to remember that this moment in time is not just about the political composition of the Supreme Court. It’s also about how we view sexual assault and harassment, and how we treat the perpetrators and the accusers. We are, after all, in the middle of a reckoning on that subject. Giving Christine Blasey Ford, in 2018, the Anita Hill Bum’s Rush Treatment of 1991 is a perverse reversal of moral thought in this post-Harvey Weinstein world.

Here’s how this story should end: Without making a factual determination on the sexual assault allegation, the Senate should reject Kavanaugh’s nomination. Such a decision does not “convict” the judge of anything. But it acknowledges the reality that Blasey Ford could be right. Why take the risk of putting a man who attempted to rape her – and then lied about it – on the country’s highest court? It’s not as if he is facing jail time. He remains on the country’s second highest court. He can commiserate with fellow Judge Merrick Garland, who was denied a Supreme Court seat by Senate Republicans without so much as a whisper of bad behavior.

Such an endgame doesn’t alter Republican dreams of a conservative Supreme Court. The bull pen is packed with like-minded ideologues just waiting to take a seat on the bench. What it does do, however, is send a clear message that we have entered a new era, a time when we take accusations of sexual assault seriously, a time when one brave woman coming forward can change the face of history, and not ruin her life. Sadly, I strongly suspect we have not yet reached that time.

CLARENCE THOMAS AND ANITA HILL REDUX

Right smack in the middle of an optimistic #metoo reckoning comes a revolting development, casting serious doubt over whether our misogynistic culture has changed at all in the past 30 years. Welcome to the Anita Hill Story – The Sequel.

In an interview with The Washington Post, Christine Blasey Ford, now a 51-year-old research psychologist, said she was sexually assaulted at the age of 15 by then 17-year-old Brett Kavanaugh, who is a Senate vote away from becoming a Supreme Court justice. She told the newspaper that Kavanaugh was “stumbling drunk” when he threw her down on a bed during a party. While his equally intoxicated friend watched, Ford said, Kavanaugh pinned her down on her back and groped her while attempting to remove her clothes. She said she tried to scream but Kavanaugh put his hand over her mouth. She said she was able to escape only when Kavanaugh’s friend jumped on top of them, momentarily freeing her assailant’s hold. She said she then ran into a bathroom and locked the door. Ford did not report the attempted rape at that time, but says she has been traumatized by it throughout her adult life and has undergone therapy to deal with it. She provided The Post with notes taken by her therapist detailing the assault.

So, does that change anything with respect to Kavanaugh’s Supreme Court nomination? “No way, not even a hint of it,” says a lawyer close to the Trump Administration. “If anything, it’s the opposite,” said the attorney. “If somebody can be brought down by accusations like this, then you, me, every man certainly should be worried. We can all be accused of something.”

Roll the clock back 27 years. Anita Hill, a young law school professor, accused Clarence Thomas of sexual harassment when she worked for him at the Equal Employment Opportunity Commission, the agency charged with the policing of such workplace conduct. With Thomas’ Supreme Court nomination hanging in the balance, Hill told how her boss made repeated advances to her, talked about the size of his penis and described vivid scenes from pornographic movies. None of that kept Thomas off the court. Hill was excoriated by an all-male Senate Judiciary Committee, with a seemingly bipartisan mission to get past the discomfort of Hill’s testimony in order to put Thomas on the bench. Said one of the senators back then, “If that’s sexual harassment, half the senators on Capitol Hill could be accused.”

As a measurement of just how far we haven’t come in nearly three decades, compare that unintended condemnation of the male gender to today’s utterance from the White House. At least the 1991 version exonerated half of the men in Congress. The Trump lawyer put the entire gender at risk of a sexual assault accusation.

Let’s get something straight here. This is not about the politics of a Supreme Court nomination. As noted earlier in this space, there is an overflowing pipeline of ultra-right-wing judicial candidates waiting to replace Kavanaugh. Surely they aren’t all attempted rapists. This is about coming to grips with a critically deep cultural divide over the way men use sex as a cudgel of power over women.

Even after a year of growing #metoo awareness and conversation, there is abundant evidence that we have not fully apprehended the depths of our divide. There remains a painfully enormous lack of symmetry between the accusers and the accused, or – in 99 percent of the cases – between the women harassed or assaulted and the men responsible.

Finally-fallen CBS CEO Leslie Moonves whines about “ancient” accusations from more than 12 women who he sees as destroying his career. One of those women, Phyllis Golden-Gottlieb, is now in her 80s. According to Ronan Farrow’s reporting for the New Yorker, Golden-Gottlieb has been tormented for half her life by memories of Moonves forcing her to perform oral sex. To her perpetrator, it was just another day in the office. To her, it was jarring her soul and traumatizing her life.

Then there is Tom Brokaw, former NBC news anchor and a revered journalist. Multiple women came forward to recount, in the kind of detail that seemed etched in their minds forever, how he forced himself on them. Here’s how Brokaw described his reactions to those accusations: “I was ambushed and then perp walked across the pages of The Washington Post and Variety as an avatar of male misogyny, taken to the guillotine and stripped of any honor and achievement I had earned in more than a half century of journalism and citizenship.” What his accusers lacked in eloquence, they made up for in detail, a result of painful memories of being forcibly kissed and/or groped by a man far more powerful and respected than themselves, as long as 50 years ago.

The examples go on and on. Some of the men are simply slimeballs, incorrigible serial abusers. Others, however, have led decent, respectable, productive lives. Their transgressions – big or small, multiple or single – share a common thread. They all crossed the same line by abusing power to obtain some form of nonconsensual intimacy. In many cases, those moments of transgression may have long been erased from the perpetrator’s memory bank, by way of an alcoholic backout, or the redundancy of similar behavior. Meanwhile, their actions were deeply seared into the psyches of the women they hurt, leaving lifetimes of deep scar tissue.

The days ahead offer a poignant moment in dealing with this cultural divide. If Christine Ford ends up ridiculed and shamed like Anita Hill was, the damage will be far, far worse than simply seating Justice Kavanaugh next to Justice Thomas. It will mean we need a complete resetting of our moral compass. It will mean that even an enlightening #metoo movement is insufficient to make us grasp the difference between right and wrong. And to understand that when it comes to this type of wrong, there is no statute of limitations.

FOR RIGHT-WING IDEOLOGY, IT’S OUT OF THE SHADOWS AND ONTO THE BENCH

As a proud member of the Liberal Geezerhood, I have lowered my imaginary flag to half-mast in the melancholic recognition that, for the rest of my life, America’s federal judiciary will be in the hands of a right-wing cabal. The Supreme Court is on the cusp of having a rock solid conservative majority, which based on actuarial tables, will keep growing long before it dissipates. Two appellate circuits have already flipped to the right, and another two are on the verge of doing so.

Yet, as a life-long student of the political process, I can’t help being impressed with the skill, chutzpah and dogged determination behind a quiet, 36-year revolution that very few of us saw coming – until it was too late. When it comes to effective organizing principles, this amazing coup d’état could teach the left a thing or two.

We baby boomers grew up taking for granted that the role of the Supreme Court was to give life to the Constitution’s noble-but-ambiguous aspirations, core values like “equal protection”, “due process”, and “right to counsel”. Through those principles, we saw the court put an end to school desegregation, allow women to have access to contraceptives and abortion, require states to provide attorneys for low-income criminal defendants and prohibit police interrogations without advising suspects of their right to remain silent.

Meanwhile, a handful of ultra conservative lawyers and law students stewed quietly over what they saw as an overly activist judiciary and a liberal bent in most law schools. In 1982, that angst gave rise to something called the Federalist Society for Law and Public Policy Studies, a name far more elegant than either its origins or mission warrant. According to most histories of what is now known simply as the Federalist Society, the germination began with small chapters of disaffected and extremely conservative law students at Yale, Harvard and the University of Chicago. They felt disenfranchised by what they saw as an overly liberal legal profession and gathered together to share in that bond. With the help of some of the right’s most well-known attorneys, including Edwin Meese and Robert Bork, the movement quietly evolved into a pipeline aimed at mainstreaming conservative legal thought and producing an army of Federalist Society judges that could turn American jurisprudence on its head.

Today, the Federalist Society has 70,000 members, chapters at more than 200 law schools and over $25 million in net assets. Their patron saint is the late Justice Anton Scalia, revered by the society for his “originalist” approach to interpreting the Constitution. Once an outlier in judicial thought, originalism endeavors to freeze the Constitution at whatever strictly constructed meaning it had back in 1787. Since the founders back then were not thinking about things like abortion, racial segregation or gay marriage, then today’s courts should stay clear of all such current controversies. Or so the Federalist Society believes.

The truth, however, is that originalism is a cheap intellectual illusion intended to mask the brazen political goals of right-wing ideologues. After all, it was Scalia himself who, in a landmark gun rights case, found a private right to own a pistol in Second Amendment language that speaks of bearing arms in the context of a “well-regulated militia”. A credible argument perhaps, but one that stabs a dagger through the heart of originalist purism.

Here’s how fast the Federalist Society and originalism have evolved: When George W. Bush nominated now Supreme Court Chief Justice John Roberts, the White House insisted that the nominee “was not now and never has been” a member of the Federalist Society. It was as if mere association with this group posed a threat to his confirmation. Roberts is now proudly out of the closet as a card-carrying Federalist, along with his fellow society brethren Samuel Alito, Clarence Thomas and Neil Gorsuch.

If you are counting, that makes four Federalist Society members on the nine-member court. Number five is just a Senate vote away. Brett Kavanaugh has been a Federalist activist for more than 20 years. In fact, when he worked for Bush, he was the one who persuaded his boss to nominate the then-closeted John Roberts. That is precisely how this once obscure organization works. It jams an extensive pipeline with well-groomed right-wing thinkers and sends them through a labyrinth of channels, from clerkships to partnerships to judgeships.

How did all that happen? Enter Leonard Leo, a quiet, far right ideologue and a brilliant organizer. Leo is a member of the secretive, reactionary Knights of Malta, a Catholic order founded in the 12th Century that is to the extreme right of the Vatican. According to close associates, Leo declared 20 years ago that conservatives had lost the culture wars – abortion, gay rights, contraception and diversity. He said the only solution was to “stack the courts”. He signed on with the Federalist Society as its fulltime paid operative and the stacking was quickly underway.

Roberts and Alito – and a couple of circuit appellate judges – were big wins for Leo during the George W. Bush years. But the floodgates opened wide for him when he joined forces with one of the most ideologically impure politicians in American political history. According to the New York Times, Leo repeatedly refused to meet with candidate Donald Trump in 2015 and early 2016. Eventually, however, he was persuaded to take a meeting. To Leo’s astonishment, Trump told him to come up with a list of Supreme Court candidates, and that he would publicly promise to fill the Scalia vacancy from that list. Months later, Neil Gorsuch moved from Leo’s list to the United States Supreme Court, soon to be followed by Brett Kavanaugh. Court watchers have estimated that by the end of the year, 26 percent of the federal appellate bench will have come through the Federalist Society pipeline. How amazing. How frightening. The selection of lifetime judgeships has been subcontracted to an outfit that the last Republican administration disavowed as too dark and shadowy.

Sadly, at this moment, there is nothing for liberals to do but grit our teeth and shake our heads. We have been outmaneuvered by a skilled right-wing court stacker. As the moment passes, however, we need to learn from him. We need to build our own pipeline of brilliant young lawyers willing to don judicial robes and apply the constitutional values and principles set forth by the founders to our current lives. Yes, it’s enormously sad to see the death of the judicial thinking we grew up with. But, as the late, great Joe Hill said in a different context, “Don’t mourn, organize.”

NO-PIVOT TRUMP AND THE CAMPAIGN THAT NEVER ENDS

Remember all that talk about Donald Trump pivoting? Once he secured the Republican nomination, he was supposed to pivot from the right to the center. After the election, we waited for him to pivot from candidate to president. When he gave his first speech to Congress without embarrassing himself, there was talk of his having pivoted into a genuine leader. Pundits greeted John Kelly’s appointment as White House chief of staff as the Donald’s major pivot toward becoming presidential. It never happened, none of it. Turns out that waiting for Trump’s pivot was as laborious and fruitless as Vladimir and Estragon Waiting for Godot. Like Godot, the pivot, never came.

Instead, for the first time in our history, we have in the Oval Office a one-dimensional, perpetual candidate, a blowhard with neither core beliefs nor the slightest interest in public policy, a president in name only whose singular vision is his own self-aggrandizement. And this is why our charlatan-in-chief can put children in cages, buy a porn star’s silence, lie 6.5 times a day, and still have a 42 percent approval rating.

All he does is campaign. There is no real governing going on here. Governance to Trump is the art of making stagecraft pass as statecraft. He has created a governing façade that casts himself as the omnipotent, winning superhero, righting imaginary wrongs and taking America back to a joyous, magical place and time that never existed.

We should have seen this coming when Trump filed his reelection documents on the day he was inaugurated, as opposed to waiting until the third year of his term, as all of his modern predecessors did. Or, when he obsessed over the size of his inauguration crowd. Or, when he ordered an investigation of voter fraud, insisting he had been robbed of votes, even though he won. Or when he kept right on holding campaign rallies and leading the faithful in chants about the wall and Crooked Hilary. These are not the actions of a man pivoting from campaign to governance. Alas, the Donald doesn’t pivot. He has only one gear and it’s all about creating adoration for himself.

At this very moment, Trump is preparing the pageantry for a prime-time Monday night announcement of a Supreme Court nominee who will supposedly sound the death knell for abortion rights. He’s been downright giddy about it for days, telling one audience this week, “other than war and peace,” packing the court with the right judges is the most important thing a president can do. Lest you think Trump’s judicial fixation reflects a deeply held reverential respect for the unborn, check out this 1999 clip of him boasting that “I am very pro-choice.” This nomination, like everything in Trump’s life, is purely transactional. He delivers a solid 5-4 conservative majority on the court, and sops up more love and approval from the right. As a bonus, attention is diverted from the thousands of migrant children he pulled away from their parents.

Reach deep into the soul of Donald Trump and you will find absolutely nothing. He is the first president with a totally empty ideological slate, unless winning or self-interest count as ideologies. He has changed party affiliation five times. His position on any issue turns on a dime, based on his instant calculation of what will make him look best in any given moment. Aside from this perpetual self-promotion, he makes no pretense of governing or leading. He doesn’t read briefing memos prepared by his staff. He doesn’t understand many of his own positions or policies. He signs executive orders without reading them or knowing what they do.

By not governing, Trump is able to focus exclusively on the only aspect of his job that appeals to him: campaigning. He pours all his energy into promoting himself and his brand, and demonizing those who decline to worship at his altar. Everyday his 40 million Twitter followers are bombarded with mini campaign messages. Yes, most are in prose that could pass for a middle school message board, but based on polling, they are having an impact.

Here’s a quick sample from the past few days:

• Democrats. . .weak on the Border and weak on Crime.
• We are doing a far better job than Bush and Obama.
• TAX CUTS are already providing historic gains for minorities, women, and small businesses.
• Democrats want anarchy, amnesty and chaos – Republicans want LAW, ORDER and JUSTICE!
• Russia continues to say they had nothing to do with Meddling in our Election!
• The Russian Witch Hunt is Rigged!
• Crazy Maxine Waters, said by some to be one of the most corrupt people in politics.

This is what happens when a candidate for president is incapable of grasping the fact that he won, and must now actually lead. Like a character in an absurdist play, he just keeps on campaigning while his kingdom crumbles. Yet, it does explain why a guy who has accomplished so little, and destroyed so much, manages to hold a 42 percent approval rating. As former Trump University students can tell you, aggressive marketing, laced with a modicum of fraud, can sell a horrible product.

TIME TO LET GAYS MARRY AND HAVE THEIR CAKE TOO

Poor Antonin Scalia. He missed the dessert course of gay rights cases at the Supreme Court this week. Only his untimely death could have kept this corpulent originalist from an oral argument banquet he knew was coming long before he died. The question before the Supremes? Can an anti-gay-marriage baker refuse to make a wedding cake for two grooms?

Nobody could have anticipated a wedding cake dialectic back in 1986. That was when the Court decided Bowers v. Hardwick, a ruling that upheld state sodomy statutes criminalizing sexual relations between same-sex partners. The majority held that the Constitution confers no protections on gays and lesbians.

Seventeen years later, however, the Court embarked on what Scalia considered a slippery slope “to end all morals.” In 2003, the Court reversed its earlier decision and, in Lawrence v. Texas, said laws effectively banning gay sex were unconstitutional. Although none of the litigators in that case were even remotely thinking about gay marriage back then, Scalia was several chess moves ahead. In a sharply crafted dissent, he prophetically predicted that it was only a matter of time before the Court would be fighting over gay wedding cakes.

If “homosexual conduct” is no longer proscribed, Scalia posited in his dissent, “what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising the liberty protected by the Constitution?” Those words, although composed in a font of deep sarcasm, later served as the plaintiffs’ road map in legal battles that brought down the Defense of Marriage Act in 2013 and, finally, in 2015, established the constitutional right to marry for gay and lesbian couples.

Scalia didn’t know whether it would be a butcher, a baker or a candlestick maker, but he was pretty certain that this “slippery slope” of gay rights would one day end up with a hoot and a holler from somewhere in the vast matrimonial industrial complex. Stepping up to prove him right was Colorado baker Jack Phillips. The betrothed couple, David Mullins and Charlie Craig, went to Phillips’ Masterpiece Cakeshop to order a cake for their wedding. The baker told them he was personally opposed to gay marriage and, for that reason, would not bake them a wedding cake.

Mullins and Craig argue that Phillips’ refusal to do business with them violated Colorado’s law prohibiting discrimination on the basis of sexual orientation. The Colorado Civil Rights Commission agreed, and found Phillips in violation of the statute. The issue before the Supreme Court this week was over whether the baker’s free speech rights were violated. Phillips argued that the act of making a cake for a gay wedding was, in effect, forced speech in support of the marriage.

Don’t let the relative frivolity of a wedding cake fool you. There’s a lot more than dessert riding on this case. If the baker gets a judicial pass to discriminate against lesbians and gays, a long line of other vendors are likely to emerge: dress makers, florists, photographers, caterers, venue owners. And that’s just in the context of weddings. In Colorado and at least 21 other states, it is against the law to discriminate in hiring on the basis of sexual orientation. If the baker wins this case, it’s not a stretch to imagine homophobic employers passing over LGBT applicants based on “free speech” rights.

The history of civil rights legislation is replete with demands for exceptions to discrimination bans, but those adopted have been narrowly and specifically defined in the statute. For example, a religious institution may limit hiring to practitioners of that religion. The “free speech” exemption is a dishonest and absurdist escape from the very intent of nondiscrimination laws. Using the Colorado baker’s argument, a racist landlord could refuse to rent an apartment to blacks on the basis that to do so would be “forced speech”, namely that he approves of black people.

In the real world, selling a cake for a gay wedding, or renting an apartment to a black family, endorses neither the marriage nor the tenants. It simply follows the law. In the public marketplace, a seller’s wares must be dispensed in accordance with applicable nondiscrimination laws. Granting a pass for discrimination based on the discriminator’s personal belief could well set off the slipperiest slope of them all. All discrimination emanates from personal belief. That’s why the laws were adopted in the first place. You can believe someone is inferior because of who they are, you just can’t penalize them for it when doing business with them.

The notion that Jack Phillips, by making a wedding cake, would be forced into advocating for the marriage of his two would-be male customers is total nonsense. He’s not making a toast, throwing rice or even going to the wedding. He’s not blessing the happy couple. He’s just baking a cake. As Justice Sonia Sotomayor said, “When have we ever given protection to food?” Unfortunately, this Court appears sharply divided on the issue. The crucial vote will likely be that of Justice Anthony Kennedy who kept everyone guessing this week by offering critical comments to both sides.

The only safe bet right now is that in some afterlife or another, Antonin Scalia is chuckling to himself. He was, after all, right about one thing: When you give basic human rights to the oppressed, those who benefit from the oppression will fight to maintain their ways. It’s time to serve up the just desserts (with Justice Scalia’s posthumous dissent duly noted): Let them eat cake.