How to Fix the Supreme Court, Part Two: B is for Brett
Follow the money, tug the leash, and convince Brett Kavanaugh to resign.
Thus the wild young spendthrift of Biblical proportions
Drank the bitter vial of repentance dry
And in final gaze upon his cloistered origins
He hung his head to cry
—Remembrances of Tsarskoe Selo (Alexander Pushkin, 1815)
The aim of the law is not to punish sins, but is to prevent certain results.
—Commonwealth v. Kennedy (Oliver Wendell Holmes, Jr., 1897)
Here I am at a famous school
I’m dressin’ sharp and I’m actin’ cool
Got a cheerleader here
Wants to help with my paper
Let her do all the work
And maybe later I’ll rape her
—“Bobby Brown (Goes Down)” (Frank Zappa, 1979)
Guest Post by Moscow Never Sleeps
I. The Stakes
THERE ARE severable recognizable law school archetypes. Here are three:
Seventeenth Graders are fresh from college. They still wear their Greek merch and talk at length about keggers and sports or mixers and clothes, as if this is simply an extension of whatever four-year institution just belched them out into the next stage of entitlement.
Haircuts are under no illusions whatsoever as to the true purposes of the American legal system: money and power. By 1L, they are already wearing business casual to class, preferring satchels to backpacks, and discussing which churches to join for maximum client development purposes, or which prosecutor offices have the highest conviction rates.
Maggots are the highest form of life in legal education: puffy white bug-eyed creatures, top students because they never go outside the windowless law library. Maggots are on law review, get selected for clerkships, and dream of judging or teaching for a career.
Brett Kavanaugh, Yale Law Class of 1990, was a Seventeenth Grader who manifested as a Maggot, but who underneath it all was simply a Haircut. People who think that he’s some Brainiac brew-bro, a well-churched suburban all-around sports fan who just happens to be wicked smaht, are missing his essence. Sure, he likes his suds and, possibly, betting on games that haven’t been reliably fixed since before Prohibition, and he’s also a legal scholar of above-average competence and decent writing skills. But at his core, he is nothing more than a mercenary, a cheat, and a slave.
The year the Boofmeister was born, one of the best poker films ever made came out. The Cincinnati Kid is about a high-stakes underground card game between the old shark Edward G. Robinson and the young hotshot Steve McQueen. Dealing the table is the corrupted “mechanic” Karl Malden, who can load or mine hands of even the most seasoned players without detection. Malden is dealing from the bottom because villainous Rip Torn is blackmailing him over gambling debts. The Brettster, in this analogy, is the mechanic on a leash.
Here’s how frighteningly good the Devil’s Triangle is at what they hired him to do. Twenty years ago, when Gore and Bush were slugging it out in Florida over hanging chads, a team of young conservative lawyers made their bones briefing a loaded and receptive red SCOTUS on reasons to stop the count in Florida and let W steal the election for Jesus and the unborn. The lawyers on that team are a Who’s Who of Federalist darlings, names you will recognize: George Conway, John Roberts, Amy Coney Barrett, and Brett Michael Kavanaugh.
Here is why Bush v. Gore is a landmine of a decision. Bush’s minions made two parallel arguments which did not touch but arrived at the same political end. First, they argued, Florida’s differing electoral regulations across the state created a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution (guaranteeing that a state afford all of its citizens the same voting rights). Second, the Florida Supreme Court interpreted Florida state election law incorrectly and therefore, they argued, under Article II of the US Constitution, SCOTUS is empowered to overrule state supreme courts on state electoral law when Presidential elections are involved.
The first was a bad beat for Al Gore. It wasn’t the Democrat’s fault that Florida’s 67 counties had drastically differing ballot formats or tabulation machinery, but it raised just enough unequal treatment of voters and votes that Bush had a decent Equal Protection Clause argument. The right and the wide center of the Court, some with regret and some with glee, picked up Alexander the Great’s sword, and with seven votes, cut the Gordian Knot, giving Florida’s votes and therefore the race to Dubya. For 20 years scholars have suggested other ways the Court could have decided, but this bad case was not without one good outcome. The terror of another recount farce forced Florida and a number of other high-EV swing states with self-respect (by definition, therefore, not Texas) to overhaul their vote-counting systems to avoid this mortifying mess again. Fewer battleground states with hodgepodge county regulations means much less risk of another Bush.
The second argument is where Kavanaugh et al. left a time bomb that almost went off this year (and may yet if Trump’s crack legal team can find a way to bring his evidence-free grievance to the Supreme Court). This is where you want to read carefully and, if you practice a religion, have a couple prayers handy. Because this argument was a doozy. If it finds the right case to resurrect it, it’s game over for presidential elections that favor popular vote winners, i.e. Democrats.
The basic rule of small-f federalism is that federal courts defer to state court interpretations of state law, except where a fundamental right in federal law would be affected. Since that principle was laid out in 1787, the Supreme Court has played with the question of what rights in federal law are so fundamental as to constitute an exception to state court sovereignty on state law matters. Subject to certain technical restrictions on deadlines and some general commonalities of eligibility, the majority of laws on how a state collects, counts, and assigns popular votes to electoral votes in a presidential election are left to the states. That is why states have different rules about mail ballots or certify their counts on different days, and why Maine and Nebraska apportion their electoral votes proportionally to their popular vote counts and all the others are winner-take-all. That is also why states cannot disenfranchise based on racial, age, literacy, or gender lines (which are established by federal law) but they can deny voting rights on the basis of criminal record or ID requirements (which have no explicit federal protection). As long as state supreme courts observe the bright line of their authority, the U.S. Supreme Court avoids reviewing their decisions.
In Bush v. Gore, Boof’N’Barf’s team argued that another exception to the above rule should be whenever (a) a state supreme court possibly misinterpreted state law and (b) a Presidential election is on the line. State high courts do sometimes get their state laws and constitutions woefully wrong. The answer to that is generally to suck it up, force the state legislature to write laws more clearly, and try again when the composition of their courts is better able to read. It is never, without an explicit federal question involved, an accepted remedy to reverse that mistake in federal courts.
So, Keg King Kavanaugh helped craft an argument that under Article II, Section 1, Clause 2 of the U.S. Constitution (governing how states may select their electors) any Presidential election is automatically enough of a federal issue to require SCOTUS review of a state court’s decision of state law affecting how electors are selected. This exception is a potential gamechanger: after all, every law a state makes regarding how its citizens vote in federal elections ultimately touches how it selects its Presidential electors. Because the Court had already found for Bush on the Equal Protection Clause issue, which alone threw him the electoral result he needed, there was no reason for the Court to reach this question. Neither the liberals nor the centrists wanted to touch it, but that did not stop Scalia (whose son worked for the Bush team’s law firm), Thomas (whose wife worked for the Bush campaign), and Rehnquist (who always appreciated a practical joke played on someone else) from filing a concurrence, written by the Chief Justice, lauding the Article II argument and leaving it in writing for later use.
Fast forward twenty years until this past October. In Democratic National Committee v. Wisconsin State Legislature, the pre-Barrett Court ruled 5-3 to allow the GOP Wisconsin State Legislature (over the Democratic Governor’s veto) to cut short to Election Day the date on which mail-in-ballots, in order to be counted, must be received. By itself, DNC v. Wisconsin is an unremarkable and generally uncontroversial decision: substantively, many battleground states such as Florida have identical deadlines with no perceived offense to federal prerogatives; procedurally, SCOTUS was hearing a review from a lower federal court on federal questions raised by a state legislative act. So Bush generally, and the Rehnquist Concurrence on the Article II exception specifically, had no reason to be mentioned or analyzed with approval in the Wisconsin case.
So the rat-faced little prick did both. Knowing that within days he and his pod of Federalist-certified judges would be seeing appeals from state supreme courts in Pennsylvania and North Carolina, the Kegmeister wrote a concurrence to the main decision where he dredged up the treasure he asked Rehnquist to bury for him two and a half presidents ago. With less subtlety than he used on girls in high school, Brett Kavanaugh announced that as irrelevant as it might be in Wisconsin, Rehnquist’s Bush comments might be useful in cases where the legislature and supreme court of a state were in conflict over electoral rules. Almost immediately, federal appellate courts and state legislatures took the hint that they should try to use the Rehnquist Concurrence in their rulings to direct cases to the Supreme Court, which may enshrine that poisoned pill into actual precedent.
Thus far, the raw numbers in the battleground states are heavily in Biden’s favor, and Trump is losing resoundingly under the most restrictively pro-Republican interpretation of those states’ GOP-written vote-counting legislation. Because Rehnquist’s Theorem remains obiter dicta (Latin for “just saying,” interesting and persuasive, but not yet law), and because the Trump campaign cannot meet even the most liberal pleading standards necessary to survive dismissal, state trial judges can avoid raising the federalism issue as they slingshot Trump’s lawyers out of court like flaming evidence-free dog turds over the neighbor’s hedge. Any scenario that allows hard red or purple states such as Arizona, Wisconsin, Michigan, or Pennsylvania to defy certification and/or their own governors and send bent electors to the College also requires them to violate their own procedural by-laws or hold legislative sessions in violation of their own constitutions. Which, until the Article II Concurrence becomes law, state supreme courts will not allow them to do.
Trumpworld’s better-lettered lawyers would like to make an end-run at the Supremes with the argument that Rehnquist/Kavanaugh allows state legislatures to make up their own rules of order on the fly when Presidential elections are involved. Other than this Hail Mary, the Trump campaign has nothing left to argue. Chief Justice Roberts, who helped make the argument in 2000, has not yet shown any fondness for it now that he must realize the volume of cert petitions it guarantees the Court every four years. But add Barrett to Kavanaugh, Alito, and Thomas and that’s the four votes necessary to grant review of the question. Add Gorsuch, and the Federalist Article II brick joke from two decades ago will land, if not now, then in 2024, when the race may be tighter and the swing states bloodier. They will disenfranchise the voters and disempower the supreme courts of any state with loaded houses. Presidents will effectively be chosen by the legislatures of most large swing states, similarly to how Senators were elected before the Seventeenth Amendment.
The only thing left of the American popular democratic experiment will be the echo of bagpipes through the cemetery.
II: The Leash
I’ve explained Kavanaugh’s skills as a mechanic; here’s the leash. When Anthony Kennedy took the phone call and retired from his seat at the center of the Conference, Trump didn’t have to pick Baseball Betting Brett for his nomination. Yes, the little rodent clerked for Tony, his Federalist service record was impeccable, he was in his early 50s, and his constant Billary revenge fantasy comments to friends earned him at least a bronze at several events in the Clinton Hater Olympics, but the Circuits are full of W- and Trump-appointed Haircuts with similar credentials, most of whom are more personable and wealthier than God’s Gift to Co-Eds, none of whom would have shown us the kind of Jerry Springer television Kavanaugh guaranteed. Trump could have gone with Barrett, or half a dozen other fresh-faced “eminent legal scholars” with trust funds and crucifixes, and bruise the Democrats’ tonsils over an ideological fight with the same end result as they scored with Alito, Roberts, or Gorsuch.
But Donald Trump went straight at Brett Kavanaugh for the same reason Rip Torn put the touch on Karl Malden: the snarling little shit had a serious money problem. Maybe, as the Republican talking points go, it is mere anecdotal supposition that Kavanaugh the man is a functional alcoholic, a compulsive gambler, and an abuser of women. Nevertheless, it is objective truth from the signed financial disclosures of Kavanaugh the public servant that he and his wife are a solidly middle-class suburban couple living significantly beyond their means. In 2006, when he was a federal judge, Brett and the Missus put an unexplained down payment on a jumbo-mortgaged $1,225,000 house; at the time, he was making $63k a year, and she was mostly a SAHM. The family went heavily into unsecured credit card debt every year thereafter.
Suddenly, in 2017, a couple hundred thousand dollars of red ink disappeared off of his annual filings without a matching increase in income or liquidation of an asset. Either Santa has a soft spot for bad boys, or someone did a financially incontinent federal judge a serious favor.
That’s Kavanaugh’s leash. Now let’s talk about how it can be his noose.
Again, this is an impeachment-free strategy session. The House has members like Katie Porter (who wields a whiteboard like Wonder Woman’s lasso) and Adam Schiff (who has the imperturbable demeanor of the killer prosecutor he once was) ready and able to dissect Kavanaugh’s numbers to a point that an eighth grader can see what happened. The House also has the votes to proceed articles to a referral to the Senate. The issue is the upper chamber, which presents three problems to any removal proceeding: one, the only math Senators can handle is fractions of one hundred; two, this Senate proved two years ago at Kavanaugh’s confirmation that they have no taste or aptitude for public dark money inquiries; and three, there’s no way at least seventeen Republican senators, all of whom enthusiastically confirmed the little vermin, are going to vote to reverse themselves and convict the Boof, or Boofer, or Il Booferino (if you’re not into the whole brevity thing).
But if Senate control goes to the Democrats, it doesn’t need to vote on removal to make Kavanaugh’s life interesting. It doesn’t need to vote at all. Perjuring oneself to Congress is still a crime, as much as Trumpworld tried to make it a competitive sport, and Brett Kavanaugh took a blue ribbon in lying straight through his chiclet teeth during his confirmation. Roughly, the boy’s prevarications break out into three categories: the assaults, the meetings with Trump’s proxies, and the money. Of these, the last group of porkies are the most likely to put Kavanaugh in the cut.
First off, let’s table the rape stuff. Yeah, it’s ugly. Yeah, we don’t want to let that horror go unaddressed. Yeah, we all have mothers and sisters and wives and daughters and we all see red at the thought of some entitled little droogie falling on any of those pteetsas and holding the devotchka down with a rooker to cover her creeching rot as he brings the goly malenky vecky-weck out of the brookies for a bit of the old in-out-in-out. Yeah, any of us who went to prep school remembered our own class Kavanaugh, and the girls we had to protect from him.
Rape is bad, but from a legal standpoint, the Kavanaugh-Ford case was turkey shit then, and it’s no better now. Even with corroboration of the women’s stories, at the end of the day we’re not trying to prove that Kavanaugh committed sexual assault 38 years ago in Maryland, where sex crimes have no statutes of limitation (unlike in DC and Connecticut, where he went to college and law school, and the statutes ran out at least 15-20 years ago). We’re trying to prove he lied under oath, but the sad truth is that in addition to being an abuser of women, Kegs has quite probably also been a blackout drunk since adolescence.
Steve Martin’s famous two-word legal defense formula is surprisingly effective in defending perjury cases. “I forgot…I actually did try to [whatever euphemism Brett thought was funny in high school] while I was in a sudsy yellow haze, so I guess I misspoke in my testimony,” disgusting as it sounds, is fatal to any perjury trap dreams we still harbor on the assault. And the underlying wrong, even if established, is felonious only at a state level and carries no direct federal sanction. Any points scored for pursuing the rape denial claim will be Pyrrhic at best, Quixotic at worst.
Second, the quid pro quo. Donald Trump nominated Brett Kavanaugh only after it was a grand slam home run that Baseball Cards came ready to trade. If the last four years taught us anything, it’s that after half a century of dedicated criming, the Don has world-class skills at finding Major Leaguers ready to throw the Series. Trump of course was probably perfectly happy to have that conversation (“You’ll help me out on Mueller, right, kid?”) directly with the little badger in the Oval Office over Diet Cokes and a bucket of Traditional Recipe. But that turned out not to be necessary. Like any other cult (e.g. the Ku Klux Klan or the Catholic Church), the Federalists have their own systems of vetting and control that do not leave Presidential fingerprints.
Two years back, Kamala Harris went after nominee Kavanaugh about whether he had discussed the ongoing Mueller investigation with anyone. Harris specifically asked whether Judge Kavanaugh had met with any attorneys at the law firm headed by Marc Kasowitz, a Trumpworld consigliere. Under oath, the candidate squirmed around these questions like every other properly rehearsed Trumpworld stooge. Anyone who has had a mother knows exactly where Harris’s facial expression came from. She had and still has some information that the nominee met with the only Trump attorney who is smart enough to avoid the limelight, and had The Talk.
Big deal. Unless, and possibly even if, Senate Democrats have affidavits from Kasowitz staffers confirming Kavanaugh was directly braced on Mueller or Rehnquist’s Article II concurrence (or some other Trump-sensitive case that was likely to hit the SCOTUS during the Trump Administration), there’s no perjury case to refer. Kavanaugh never directly denied any meetings. He just pretended not to know which attorney at the firm Harris was trying to ask him about until she dropped the line of questioning. She never identified about whom she specifically wanted to know, either because (a) she did not have hard evidence that a meeting between Kasowitz (or his employees) and Kavanaugh took place or (b) she did not want to reveal the evidence she had and was hoping that Kavanaugh would be stupid enough to put a hard denial into the record. Either way, however slimy his response, he slipped through the perjury trap like a mucus-covered eel through an oiled spaghetti loop.
(Fun fact. Seventy years earlier, another Junior Senator from California put a similar question to another former Supreme Court law clerk. Alger Hiss—a man otherwise smart enough to be no less than Oliver Wendell Holmes Jr.’s last legal assistant—flatly denied under oath during a televised Senate hearing ever meeting a certain Whitaker Chambers, whom Richard Nixon then produced to testify that Hiss had met him. Two years later, Hiss was convicted of perjury. Two years after that, Nixon was Vice President. Kavanaugh, albeit obnoxious and arrogant, did not have Hiss’s Olympian hubristic stupidity as a witness, but Harris also wasn’t as ruthless—or as prepared—as Nixon.)
But the money? Like Captain Queeg’s strawberries, that’s where we’ll have him.
III: The Receipts
A financial fact pattern is simultaneously the easiest and the hardest evidence a lawyer can deal with. Easiest, because the financial records exist somewhere on paper and are easily authenticated and cross-checked with other records, all of which originate from sources outside the influence of witnesses, parties, or subjects of investigation. Financial documents do not rely on imperfect human memory, are void of impression, are unaffected by bias or prejudice, and are immune to attacks on witness credibility. There’s a reason we say someone with a credible argument “brought her receipts.” (Kavanaugh the lawyer certainly knows the weight of paper against recollection. Why else did he wave around his high school planning calendar from 36 years prior? As ludicrous as it was to assume that a 17-year-old kept contemporaneous written records of his underaged drinking exploits, it carried just enough imprimatur of validity to refute an uncorroborated closed-door accusation.)
The main challenge lawyers face when proving a financial irregularity is the profound mathematical incompetence of the average American. Fast-food restaurant staff operate cash registers like pigeons in a Skinner box, touching screens with food pictures because they can’t be trusted to ring orders up otherwise. Most of us cannot calculate the interest we pay on our debt, or our debt as a function of our income, or the value of our net worth. Merchants still round prices down by one penny because a good chunk of their customers really think $19,999.99 is closer to ten thousand than to twenty. That is why juries tend to glaze over in court when everyone starts talking about numbers. This is probably why the Senate, no Mathletes themselves, were relieved when Dr. Ford’s non-numerical allegations intruded on the hearings. Sexcrime is harder to prove, but easier for people to understand.
But there’s no need for a hearing. All the Democrats in the Senate need is to refer for further inquiry by a functioning Department of Justice any or all of the following questions from Kavanaugh’s financial reports and his testimony two years ago, all of which were submitted to the Senate under oath and therefore subject to perjury. These questions are not original—in fact the editor of this page and dozens of other observant social media personalities raise them daily:
The Kavanaughs paid $245,000 in a down payment for their house in 2006. According to Judge Kavanaugh’s financial disclosures for 2006 and afterwards, he borrowed only approximately $50,000 of that under a down payment loan program available to him as a federal employee. Where did the other almost $200,000 in down payment cash come from?
The mortgage payments—P&I alone, no property tax or insurance—for that house beginning in 2006 were approximately $55,000 a year. For at least the next two years, this was greater than the Kavanaughs took home net of taxes, and did not take into account any other housing costs, utilities, automotive costs, tuition, food, clothing, country club membership fees, etc. Other than going into significant debt, how did they afford to pay these bills?
Apparently, they did not: by 2009 Judge Kavanaugh’s financial disclosures show credit card debts in the amount of up to $130,000. (Which seems to be the magic number in Trumpworld, starting with Stormy Daniels’s payoff figure.) He then paid these debts down to approximately $35,000 by 2015, the year after Kavanaugh received a one-time back pay lump-sum bonus as part of an across-the-board raise for the federal judiciary. However, in 2016 his credit card debt ballooned back to between $60,000 and $200,000 (above the $15 thousand remaining on the federal employee down payment loan he took ten years earlier). In his sworn affidavits and testimony, Kavanaugh blamed this on home-improvement costs, specifying a list of renovations (a) that would require permitting by the codes of his municipality and (b) for which no permits are on record. Were these 2016 renovations actually performed, are there records of payment for them, and why weren’t any permits obtained by Kavanaugh’s contractors?
Miraculously in 2017, a year for which the reporting would have been filed in 2018—and not long before Anthony Kennedy announced his retirement—all of the unsecured debt vanished, leaving $15,000 on his federal employee down payment loan. Kavanaugh, when asked to explain where between $60 and $200 thousand came from in 2017, referred back to the one-time judiciary bonus he received, although that appears to have been received and spent three years earlier. Where did the funds come from in 2017? Were the debts forgiven (in which case the Kavanaughs would have had to report that forgiveness as income on their tax returns)? Did they receive a gift of more than about $14 thousand from either of their families with which they paid off the credit cards (in which case the giver would have had to report the gift on his or her return)? Did a third party pay off the credit cards (in which case the Kavanaughs would have had to report that benefit as income on their tax returns)? Did that third party report the expense of paying off the Kavanaughs’ credit cards on their U.S. tax returns? From whom do the credit card companies record receiving the payment to close their accounts?
This is by no means an exhaustive list, but these questions alone, stapled to subpoenas, are guaranteed to start a conversation in the family kitchen that starts with folded arms, quickly embraces cursing and probably not a small amount of alcohol, and ends with a call to a Washington lawyer who commands a six figure retainer against a four figure billing rate. Faced with the choice of copping to a perjury charge (which could get him removed), or an explanation of his funding sources (which, depending on who those mystery creditors are, could have even more negative consequences), Kavanaugh might be tempted, if Justice is smart enough to offer it, to take the Fortas Option.
Prior to being confirmed as an Associate Justice in 1965, Abe Fortas had been a founding partner at what is still one of DC’s superfirms, created out of the glory of (ironically) winning a Senate election lawsuit for LBJ in 1948. On the Court, he got tripped up when it turned out he was still getting a $20,000-per-year backhander from a major client of his former firm, who expected Fortas to throw the occasional decision his way. Not-So-Honest Abe solved that ethical dilemma by recusing himself whenever his benefactor’s cases came up, but taking the lagniappe anyway. When LBJ nominated Fortas to take Earl Warren’s seat as Chief Justice, the Senate blew up at the $20k/year revelation, and the man quit the bench entirely, leaving LBJ now with two holes, neither of which the Senate would fill until Nixon took over (but that’s a story for the next chapter). But Fortas’s fate was by no means ignominious. His old firm refused to take him back, so Abe Fortas, Esquire parlayed his four years in robes into a new SCOTUS practice arguing in front of his former colleagues and absolute fuck-you money on the daily for the rest of his life.
A good defense lawyer and a prosecutor motivated to get him off the bench but not behind bars could work that deal. If offered, Kavanaugh should take it. His massive personal failings aside, he is by all accounts an above average legal mind with a solid network of contacts and impeccable conservative credentials. As long as he leaves the Court without any adjudication of his Senate confirmation testimony—i.e., without pleading guilty to perjury or any financial misbehavior—he can re-activate his law license, and any SCOTUS practice in the Beltway would kill to have him as a partner on a seven-figure basis a year before he even starts to bill. Kavanaugh would have real brass in pocket for the first time in his life, without being blackmailed any longer. He won’t even have to sell votes to put his daughters through college after Ashley takes the house.
But what about justice?
I’ve been a lawyer for 30 years, and what most people consider justice is just vengeance in a dark suit. The law is not about righting wrongs. It’s about ending disputes. If we try Brett Kavanaugh for predation, perjury, pro quo, or payola, he will fight like the desperate cornered rabies vector that he is, complete with Pagliacci’s tears. A Greek chorus led by Lindsey Graham, Fox, and Trumpanzee Twitter will offer him up as a martyr to the cause. The reds will get him a legal team that is nothing like the incompetent MAGA assclowns we’ve come to love. He will give nobody up in public or private. He will stonewall, and even if we win, there will be blood shed, much of it blue. On the other hand, letting the little shit have dignity, however undeserved, as he trades black for blue is something the Republicans will have a hard time making us apologize for.
Photo credit: White House. President Trump nominates Judge Brett Kavanaugh for the U.S. Supreme Court, July 9, 2018.