Tag: inbrief

A Sad Week for the Senate, A Devastating Week for the Supreme Court

For ongoing analysis and coverage of Kavanaugh’s Supreme Court nomination process, click here.

No one watching this week’s proceedings in the Senate could have been bristling with pride about the current functioning of the U.S. government. Screaming, taunting, and hypocrisy were all on full display, as were the genuine and raw emotions of fear and anger.

Dr. Blasey Ford told a detailed and compelling story that is consistent with both how victims of trauma remember their assaults and how they carry themselves when forced to relay the details of that trauma. Indeed, it was clear to the nation, from her quaking voice, trembling hands, and anguished expressions that her memories of this event are all too clear and haunt her to this day. Her description of her attack is also consistent with numerous reports of Brett Kavanaugh’s hard-partying ways in high school. It is simply not credible to assert she is a staged actor or pawn in a vast conspiracy to block Kavanaugh’s nomination.

Nor is it credible to assert that the timing of her accusations somehow renders them invalid. Whether they came out a year ago or a year from now, her charges would still be worthy of investigation, as are all accusations from victims of sexual assault.

Brett Kavanaugh’s testimony refuting Dr. Ford’s allegation was similarly intense. His raw emotion, deep anger, and clear grief over what this process has inflicted upon his family appeared genuine. His denials regarding the accusations were forceful but marred by unnecessary snark and combativeness. It often appeared as if he viewed the Senators asking him questions and the hearing itself as the obstacles in his path to confirmation rather than the questions about his character and conduct.

But at the end of the day, we were still left with one event and two opposing versions of what transpired from two different witnesses.

Except that one of those witnesses wants law enforcement officials to examine her assertions, the other refused to make that same ask. One witness was 100% comfortable with the FBI looking into her versions of events, the other was seemingly not.

Now we will apparently get that investigation, the depth and breadth of which have yet to be determined. Hopefully, having independent law enforcement personnel look into this will objectively addresses the concerns of all Senators. And if either party is not being truthful, that should surface as part of any credible investigation and we will all learn the truth once and for all.

The Supreme Court is supposed to be above politics. It is supposed to be the last hope of those seeking justice against powerful and often discriminatory special interests. But the Senate GOP has been poised to tarnish the Court’s time-honored legacy with their headlong rush to win at any cost and install Kavanaugh on the court despite serious and credible questions about his fitness.

Hopefully, on the far end of this process is a resolution that restores a measure of decency in the Senate and helps protect the reputation of the highest court in the land.

 

Be a Poll Worker This November

Free and fair elections are fundamental to our democracy. This November, you can help to ensure the fairness of our elections by volunteering as a poll worker.

ACS is recruiting poll workers for Election Day as a member of All Voting is Local, a campaign of national civil rights organizations. To learn more about what poll workers do and how to volunteer in your community, visit www.beapollworker.com.

The shortage of poll workers threatens the integrity of the voting process

A critical shortage of election workers nationwide causes long lines and frustration at the polls, endangering the democratic process. When polling places don’t have enough trained workers, voters face burdensome delays that threaten their ability to cast a ballot.

Election administrators nationwide report that recruiting poll workers is a major concern in running effective elections. During the 2016 election, nearly 65 percent of jurisdictions nationwide reported that it was “very difficult” or “somewhat difficult” to recruit enough poll workers, according to a study by the U.S. Election Assistance Commission.

Together, we can fix this problem by ensuring this vital position is properly staffed at every polling location, no matter who votes there, so our democracy can work for us all.

Volunteers can make sure the polls are properly staffed this November

The Be the Difference, Be a Poll Worker campaign highlights the vital role that election workers play and aims to recruit people to meet the demand. We are focusing our efforts on four states with the greatest needs: Arizona, Ohio, Pennsylvania and Wisconsin. The effort is a core piece of All Voting is Local’s mission to identify and fix systemic barriers that stand between voters and the ballot, particularly for communities of color.

Visit www.beapollworker.com to be linked directly to your local jurisdiction to sign up for the job, learn about the essential tasks involved in being a poll worker, and find resources for more information.

Prosecuting Dark Money in New Documentary

by Sam Fouad, Assistant Director of Network Communications, and Kal Golde, ACS Lawyer Chapters Fellow

With the release of the new and acclaimed documentary Dark Money in limited theaters nationwide, a little-known campaign finance case from Montana has been thrust into the national spotlight. 

In 2010, voters in Bozeman, Montana elected attorney Art Wittich to the Montana State Legislature. Four years later, the state filed a lawsuit alleging that Wittich had accepted unreported funds for his 2010 campaign from the political organization Right to Work. The painstaking progress of the lawsuit, and Wittich’s eventual conviction in 2016, unfold as high drama in Dark Money, which highlights the small-town scandal as indicative of a sinister, nationwide effort to sway politics with obscure – and often legally dubious – funds. 

In the wake of the film’s release, we were fortunate to have the opportunity to interview Gene Jarussi, special attorney general in the Wittich trial. A practicing attorney during his professional career in Montana, Gene came out of retirement to work pro bono on the case in April 2015 at the request of Jonathan Motl, then Montana Commissioner of Political Practices. 

The retired Jarussi joined the case primarily out of a sense of duty. He had spent his entire career in the courtroom, based primarily in Billings, Montana, litigating both state and federal cases. The opportunity to help take down a corrupt politician evidently called louder than Jarussi’s retirement alternative: coaching youth baseball. 

Five attorneys clocked over 1,500 hours on the case over the next year. Jarussi recalls the all-consuming nature of the work. It gobbled up Thanksgiving. Devoured Christmas. Downed a vacation in San Diego. His expenses were paid, though the pro bono nature of the offer from Motl precluded any semblance of a paid salary. 

That hard work proved crucial. The three-day trial, which began on March 28, 2016, pivoted on the hard-earned testimony of former Right to Work employee Sarah Arnold. Illuminating in detail the organization’s robust operation to boost political campaigns, Arnold went on record to cast doubt that Wittich had no knowledge of the organization’s assistance to his campaign. 

On April 1, the jury convicted Wittich and ordered him to pay a $84,000 fine. After losing his appeal of the case to the Montana Supreme Court the following August, Wittich, who was then no longer serving in the state legislature, was left to face the consequences. In total, Jarussi recalls, the case took just over two years to complete. 

Wittich’s case, though a victory, pales against the backdrop of the wider problem. 

Since the 2010 U.S. Supreme Court Case Citizens United vs. Federal Elections Commission, campaign finance has mushroomed into a behemoth operating largely in the shadows. In the wake of that case, Jarussi recognizes that the battle against campaign finance will have to be waged at the local and state level. 

To Jarussi’s knowledge, Montana is the only state with an officer like Motl, a Commissioner of Political Practices, who is empowered to receive, investigate, and render decisions on complaints of misbehavior by elected officials or candidates. At the time, Montana was also one of few states with a law, the Corrupt Practices Act, barring corporations from contributing to political campaigns. That longstanding law stemmed from a 1912 case involving the Anaconda Copper Company and its attempts to purchase the loyalty of local politicians for its own financial gain. 

Since Wittich’s case, however, the politicization of campaign finance has rendered the fight more difficult. 

In 2012 the U.S. Supreme Court struck down the Montana Corrupt Practices Act in light of Citizens United. Wittich was convicted on two counts: failing to disclose $19,599 in campaign donations in 2010, and the fact that these donations themselves were illegal under the Corrupt Practices Act. Failing to disclose funds is still illegal, and Jarussi was able to prosecute Wittich on the second charge due to the fact that the illicit contributions occurred during a 2010 campaign – before the Court’s 2012 decision. But due to that decision, others cannot replicate Jarussi’s victory for post-2012 donations. 

And the problem is likely growing worse. During the trial, detractors accosted Jarussi as a “tool” of the liberal agenda erroneously targeting Wittich, who ran as a Republican. Years later, a man named Jake Eaton filed a complaint alleging that Jarussi committed the same campaign violations he had become famous for prosecuting. The complaint was summarily dismissed. 

Recently, the Trump administration added an additional and significant hurdle to the fight against secretive campaign funds, eliminating a rule that required some tax-exempt organizations to disclose the names of their financial contributors to the IRS. 

All of this renders Dark Money and the story of Gene Jarussi and Art Wittich especially relevant. With the pending nomination of Judge Brett Kavanaugh to the U.S. Supreme Court, the future of campaign finance law hangs in the balance. Educating voters about the dark underbelly of political contributions, and empowering attorneys to fight it, has become a national imperative. 

Kavanaugh Hearings Day Four: ACS Experts Testify

The Senate Judiciary Committee concluded Brett Kavanaugh's Supreme Court confirmation hearing on Friday by listening to witness testimonies, several of which were delivered by ACS members.

ACS Board member Professor Melissa Murray of New York University School of Law gave a powerful testimony about the threat that Kavanaugh's confirmation would pose to women's reproductive rights: "Judge Kavanaugh’s judicial record evinces a very narrow view of constitutional protections long recognized by the Supreme Court, especially when it comes to women’s decisions concerning their bodies and their health care needs." Watch her full testimony here and read her statement here.

Professor Lisa Heinzerling of Georgetown Law, who also spoke at ACS's Supreme Court Preview event on Thursday, warned Senate Judiciary Committee members that Kavanaugh has targeted regulatory agencies for derision and destruction: "The opinions that Judge Kavanaugh has written in his twelve years as a judge make clear that, as a justice, he would unsettle the independence, legal authority, and protective missions of administrative agencies." Watch her full testimony here and read her statement here.

Professor Peter Shane of Ohio State University Moritz College of Law spoke about the nominee's dangerous approach to constitutional questions of executive power and presidential accountability: “Both on and off the bench, [Judge Kavanaugh] has crusaded for an indulgent interpretation of the President’s constitutional powers that could effectively undermine a President’s accountability to law.” Watch his full testimony here and read his statement here.

Other witnesses also urged senators to vote against Brett Kavanaugh's confirmation, including a Parkland school shooting survivor who was concerned about the nominee's views on assault weapons and Rochelle Garza, the lawyer whose client Kavanaugh ruled against last year in the case of an undocumented teenager seeking an abortion in Texas.

Kavanaugh Hearings Day 3: Leaked Documents Show Troubling Positions

In Day 3, Senate Democrats refused to back down on their fight to release so-called committee confidential documents.

Senators Booker and Hirono both released “committee confidential” documents related to Kavanaugh’s record on racial profiling and  his disdain for the Office of Native American Affairs and programs that target indigenous populations. Senator Blumenthal and others went on to reserve their right to release any documents before any confirmation vote and called on fellow senators to do the same. Meantime, the New York Times also published several “committee confidential” documents this morning that show Kavanaugh’s troubling thoughts and statements on several issues including, Roe v. Wade, racial profiling, affirmative action, and campaign finance .

These emails are only a sampling of those from  Kavanaugh’s time in the White House – what else could be among the millions of documents that the White House refuses to release? It’s clear Kavanaugh was at the very least disingenuous in his testimony during these hearings on several issues. These include:

  1. Roe as Settled Law: Leaked emails show that Kavanaugh suggested that a future Supreme Court could, and would, overturn Roe. Based on his previous rulings it appears that he could now be one of the Justices to do so.
  2. Pickering Nomination: During his 2006 nomination hearings Kavanaugh claimed not to have  been involved in the confirmation of a highly controversial nominee to the 5th Circuit. Documents now show that Kavanaugh was much more involved than he previously testified.
  3. Stolen Documents in 2003: Kavanaugh testified that he had never received stolen documents or documents that even “appeared to… have been drafted or prepared by Democratic staff.” Today’s revelations show that he in fact received 8 pages of material stolen from Senator Leahy with a clear designation that the source of these documents was “spying” and a “mole.”
  4. Warrantless Wiretapping: Twice under oath Kavanaugh has testified that he was not aware of Bush-era warrantless surveillance programs until the New York Times exposed them in 2005. Emails now show that Kavanaugh asked about “results” and “implications of random/constant surveillance of phone and email conversations” in 2001. The very day Kavanaugh sent these emails to Justice Department officials those same Justice Department officials sent a memo to the White House Counsel to evaluate the legality of hypothetical electronic surveillance programs.”

It is inappropriate and alarming that a nominee to the U.S. Supreme Court would lie under oath to the Senate. If Kavanaugh has been willing to skirt the truth on the above issues why should the American public take what Kavanaugh says at face value?

Yesterday, a new report from the Brookings Institution examining reasons why Kavanaugh must recuse himself from cases surrounding Trump and potential criminal charges under current precedent. Senator Whitehouse pressed Kavanaugh on this very precedent today and refused to allow Kavanaugh to dodge his questions surrounding improper influence and actual or perceived bias.

We must continue to engage with senators about postponing further consideration on this controversial nominee until the American people can see and assess all the documents related to his work on critical issues. The stakes are far too high for our nation and our rule of law to allow a vote to go forward when the record is incomplete, when senators are unable to provide advice or consent, and when the circumstances surrounding this nomination beg questions as to whether a potential constitutional crisis is underway.

Kavanaugh Hearings Day Two: Dishonesty on Garza

The first two days of the hearings on Judge Brett Kavanaugh’s nomination to the Supreme Court are over. Based on the parts I’ve been able to watch or listen to, and the commentary and reporting I’ve seen, three things stand out for me:

The missing and “committee confidential” documents are a very big deal. Democrats began the hearings yesterday with a coordinated and angry effort to expose the lack of transparency with respect to the documents produced – the lack of documents from Kavanaugh’s time in the White House, the Trump Administration’s claim of executive privilege over more than 100,000 documents, and the “committee confidential” designation on thousands of pages, thus precluding the senators from asking about them publicly. Here are four reasons that I am increasingly troubled:

  1. Senators Durbin and Leahy are not hotheads. They’ve been on the Senate Judiciary Committee for a long time. And both seem fairly sure that Kavanaugh lied to them during his 2006 confirmation hearing to the D.C. Circuit. Leahy in particular appeared very angry about not being able to question Kavanaugh about the “committee confidential” documents. (Those are the documents that have been produced to the committee but that cannot be made public.) I certainly am not prepared to say I think Kavanaugh lied, but Durbin and Leahy have presented a prima facie case that needs to be publicly addressed.
  2. Many documents have not been produced at all, in large part because of the committee’s rushed process that has sidelined the National Archives’ ordinary review of executive branch documents. The claim that the Republicans keep making in defense of this fact – that more documents have been released than for any other nominee – is laughably lame. The issue is not the raw number of pages. The issue is how much of the universe of relevant and non-privileged information is made available to the committee. If there are 10,000 pages of relevant documents, and 9,999 pages are produced, that’s suggests virtually everything has been produced. If there are 100,000 pages of relevant documents and 80,000 are produced – well, that’s eight times more than in the first example, but the increased raw number does not make it more satisfactory. And here, the percentages are much, much more skewed. Also, it’s hard to think of a good reason not to rely on the National Archives’ nonpartisan process.
  3. The Archives told the Committee that it would not be able to complete the review until late October. But that timing should not present a problem. There is no reason to rush. The Republicans kept Justice Scalia’s seat open for more than a year. I was among those who argued “we need nine,” and I still believe that. But I don’t believe that we need nine as of October 1. Any case that results in a 4-4 tie in October or November can easily be reargued during the very same Term.
  4. Senator Durbin asked Kavanaugh if he had any objection to the release of any of the disputed documents. He refused to answer, saying only that the document production issues were for the senators and the executive branch to work out. It’s true that Kavanaugh can’t require or prevent the production, but there’s no reason he can’t say that he has no objection. Why didn’t he?

Kavanaugh’s statements both in and about his opinion in Garza v. Hargan, involving the undocumented teenager who sought an abortion, are frankly dishonest. (Reminder about the facts: the teenager, Jane Doe, discovered she was pregnant after arriving in this country. As an undocumented minor, she was in the custody of the Department of Health and Human Services’ Office of Refugee Resettlement (ORR). Although she had third parties willing and able to transport her to all the medical appointments and to pay for the procedures, ORR refused to allow her to leave the facility she was staying in to get the abortion.)

  1. Yesterday, Kavanaugh described the case as being about parental notification. But Doe had already met the requirements of Texas law for a minor seeking an abortion without parental notification, and there was no federal parental notification policy in place, nor did the government say that it was defending one. There was no regulation, no enactment about parental notification. Instead, there was a government official – the head of ORR – who refused to allow any young women in ORR custody to get abortions.
  2. In his opinion, Kavanaugh described the issue as being about whether the government was justified in wanting Jane Doe to be “in a better place” – that is, with a sponsor (like a foster family) – before she had the abortion. But the government did not make this argument either Instead, the government argued that it should not have to “facilitate” the abortion by allowing Doe to be taken to the clinic by a third party and that Doe could always get the abortion by leaving the country or finding a sponsor. So the “better place” argument of Kavanaugh’s dissent was a fabrication.
  3. Yesterday, Kavanaugh suggested that his opinion made clear that the federal government would have to allow Doe to leave the shelter for an abortion if no sponsor was found by a particular date. But that’s not what the opinion said. It contained no such assurance.
  4. And then there is the timing. Before the Garza opinion, Kavanaugh was not on Trump’s list of potential nominees. Afterwards, he was. As Senator Blumenthal suggested, that looks like he was auditioning.

Kavanaugh’s views about unenumerated rights, like the right to privacy, are very crabbed. At the end of the day, Senator Kamala Harris asked Kavanaugh about Griswold and Eisenstadt. (Griswold struck down a law precluding married couples from using contraception; Eisenstadt extended the holding to unmarried people.) Kavanaugh’s answer was very troubling. He said that he agreed with Justice White’s concurrence in Griswold because it was rooted in a line of cases having to do with family autonomy. And in Eisenstadt, White declined to reach the question of unmarried individuals’ access to contraception. I hope that there will be some follow-up questions on this today.

Judge Kavanaugh did one important and good thing yesterday. He unequivocally embraced Brown v. Board of Education. To be honest, it is depressing to have to praise that embrace. But after Justice Gorsuch’s squirming on the question of Brown and Trump district court nominee Wendy Vitter’s absolute refusal to say whether it was rightly decided, Kavanaugh’s rejection of Jim Crow was a relief.