Sunday, September 30, 2018
How many times does it take for one person to learn the lesson that the suspected crime is not what typically creates harm to the accused, particularly for the white and wealthy. The attempted coverup causes the harm. One would think that more than anyone, a judge would have learned this lesson through observation.
Judge Kavanaugh did not.
The testimony of Dr. Linda Blasey Ford may not be sufficient to derail Judge Kavanaugh’s confirmation to the US Supreme Court. Nor may the FBI investigation. But under any objective standard Judge Kavanaugh has undermined himself.
Even knowing that temperament is a critical factor in judicial appointments, Judge Kavanaugh could not maintain civility during last week’s hearings. He was particularly rude to his female interrogators, supporting theories that this is a man who does not respect women.
Claiming to be the victim, and creating the requisite tears is a technique often used by white men of privilege to divert attention from their own inappropriate behavior.
Chief Justice Roberts must be distraught.
In addition to disrespecting the Senators, Judge Kavanaugh disrespected the rule of law. Although, or perhaps because, he was under oath at last week’s hearing, the Judge refused to answer many questions, notably around his drinking. Throwing back to Senator Amy Klobuchar her question about whether he has suffered blackouts from drinking was an effort to chisel away at her dignity. Even beer consumption questions were scorned by the nominee, though the issue is central to other allegations. His defensiveness around drinking makes some wonder not only whether Judge Kavanaugh suffers from alcoholism, but whether we were witnessing the dis-temperament of one who needs alcohol to function and perhaps had not imbibed for a couple of days – just in case a senator inquired. Covering up his drinking was a mistake. There is a line of former classmates who will attest to the Judge’s frequent inebriation sometimes to the point of vomiting. This attempted cover up may be the Judge’s undoing.
Even worse would be the discovery that anger and disrespect is Judge Kavanaugh’s natural state, unrelated to any addiction. But whatever the source, we can only hope that Judge Kavanaugh seeks whatever help he needs to disengage from his self-righteousness and recover or discover a respectful, alcohol-free self. Maybe then he will understand the significance of the human rights focus on respect and dignity.
The bottom line is that Judge Kavanaugh revealed his anger, disrespect and incivility to the country. And he quite likely lied or misled the Senate Judiciary Committee. Judge Kavanaugh has neither the temperament nor the character to sit on our highest court. The ABA should use Judge Kavanaugh's wretched display of anger as grounds to change their ranking of Judge Kavanaugh to “unqualified”.
Thursday, September 27, 2018
It was impossible to listen to today's testimony from Dr. Christine Blasey Ford without remembering the many women who, on prior occasions, have come forward with their stories and experiences of violence, harassment and assault, only to be told that their experiences don't matter. Much has been said about the parallels between Anita Hill's testimony and the hearing today. But there are more examples.
Remember Christy Brzonkala, the brave woman who levied rape allegations against members of the Virginia Tech football team. She made her claim under the Violence Against Women Act but, in the case of U.S. v. Morrison, the U.S. Supreme Court dismissed the claim. How dare Brzonkala challenge Virginia Tech football players in a year when they were vying for a bowl game!
Remember Jessica Gonzales, the brave woman who, despite tragically losing her children, asserted claims against Castle Rock, Colorado for failing to enforce the protective order against her husband. Her case was dismissed even without an investigation; the only hearing she received was before the InterAmerican Commission on Human Rights. Here in the U.S., the official response was, how dare she claim that the government has any responsibility for acting to prevent violence?
Remember the two additional women who came forward with information about Judge Kavanaugh, who the Senate Committee declined to call to testify. How dare they offer their information when it might delay this nomination. This is a moment of deja vu because two additional women came forward to testify against Clarence Thomas but their testimony was blocked by the Judiciary Committee.
During today's hearing, Judge Kavanaugh was asked repeatedly about his high school and college drinking, and whether he might have ever drunk to excess. His response? Essentially: "I did well in school, I got into Yale, I got into Yale Law School, I got a well-qualified rating from the ABA. I'm entitled to this."
In short, it was once again, how dare she?
A new report issued by the ACLU and Human Rights Watch addresses the harm done to families when mothers are jailed pretrial. While the research and report focuses on Oklahoma (the state with the highest number of incarcerated women) but is applicable wherever mothers are incarcerated.
The press release reports that " ailing mothers, even for short periods oaf time can result in overwhelming debt and loss of child custody." Among the findings are:
- Mothers often plead guilty in exchange for probation in order to return to their children. Then the mothers find that the local child protective service has taken custody of the children without any input from the mother.
-Jail visitation policies often prohibit in person visits replacing visitation with phone or video visits which are often cost prohibitive.
-Bail is excessive for most mothers virtually eliminating their chance for release pre-trial. Even if they raise needed bail the financial cost often impoverishes the family.
Because of Oklahoma's record of incarcerating women at high rates, the National Council for Incarcerated and Formerly Incarcerated Women is holding its conference "Free Her" in Tulsa this weekend.
Wednesday, September 26, 2018
RFK Human Rights will celebrate its 2018 Human Rights Laureates at a December 12th New York Gala. The awardees are President Barack Obama, Discovery President and CEO David Zaslav, New Jersey Governor Phil Murphy, and Humana CEO Bruce D. Broussard. Laureates were selected for their exceptional work toward a more just and peaceful world.
Ethel Kennedy, widow of Robert and founder of RFK Human Rights, will present the awards. Robert Kennedy's daughter Kerry, who is President of RFK Human Rights, noted that "On the 50th anniversary of his historic campaign for the White House, we honor laureates who have sent forth countless ripples of hope to millions of people inspired by their example."
More information on the awardees and the event may be found here.
Tuesday, September 25, 2018
Cities worldwide play a key role in both human rights implementation and in meeting sustainable development goals (SDGs). The upcoming World Human Rights Cities Forum, October 18-21 in South Korea, will explore in-depth the human rights engagement of cities. Registration information is available here.
A key topic at the conference will be how cities can use a human rights lens to tackle their SDG goals. There are many resources to help cities implement the SDGs, but very few that specifically address the role of human rights norms in that process.
The Raoul Wallenberg Institute of Human Rights and Humanitarian Law has developed a guide to assist cities in thinking about how human rights and SDGs intersect, and how embracing human rights at the city level can facilitate SDG achievement. As the guide explains, human rights cities are particularly well-positioned to serve as international leaders in meeting the SDGs.
Share this guide with leaders who are addressing these issues in your community!
Monday, September 24, 2018
Identifying as resisters has some downsides. Michael Alexander has reframed the discussion to flip our view of what is being resisted and by whom.
Ms. Alexander challenges us to examine what it means to identify as a member of the Resistance. In her NYT op-ed, "We Are Not The Resistance" the author briefly examines the history of the #Resistance movement, noting that while some resistance falls along party lines, other concerns attract a crossover population. Ms. Alexander ponders whether calling those opposed to some of the actions of this administration "the resistance" results in lowered expectations of those who resist.
"Resistance is a reactive state of mind." Alexander notes. "While it can be necessary for survival and to prevent catastrophic harm, it can also tempt us to set our sights too low and to restrict our field of vision to the next election cycle, leading us to forget our ultimate purpose and place in history."
Indeed, when we resist are we asking for a return to the status quo prior to the offensive act? A return to the status quo satisfies very few. The status quo maintains power primarily in the wealthy and the white. Women, people of color and others who historically have been denied political and cultural power are unlikely to support a return to the status quo.
We are at a moment of revolutionary change. We are not the resisters. The President is the resister. We are seeing the last gasp of corrupt systems that empower white men and often only wealthy white white men. If we adopt Ms. Alexander's more optimistic view of our expectations and our place in historical change, we can release ourselves from the exhaustion of resistance and elevate our expectations to creative change toward justice. We free ourselves to disengage resistance and join the energy of revolution.
The op-ed is well-worth reading in full to expand our historical and sociological perspective of the current movements.
Sunday, September 23, 2018
Get warmed up for the U.S. November midterms by voting for your favorite cartoon illustrating the Universal Declaration for Human Rights! The UN Human Rights Office and the Cartoon Movement, a global platform for editorial cartoons and comics journalism, are celebrating the 70th anniversary of the UDHR with a cartoon contest. To find out more, and to vote, click here. Voting is open through October 20.
A poignant sample illustrating UDHR Article 9 on arbitrary detention -- and commenting on US policies of detaining children -- is here.
Thursday, September 20, 2018
Lack of a Strategic Approach. We found that BOP could not ensure that its correctional institutions adhered to BOP policies pertaining to female inmates because BOP has only recently taken steps to formalize a process for verifying compliance with those policies. Further, while BOP established a Central Office branch that serves as its source of expertise on the management of female inmates, this branch may not have adequate staffing to fully fulfill its mission. Additionally, BOP requires all staff in female institutions to take training on the management of female inmates and trauma-informed correctional care; however, BOP does not require its National Executive Staff to complete these trainings. As a result, the officials who develop policy and make decisions that affect female inmates may not be aware of their needs.
BOP Programming and Policies. We identified three areas in which BOP’s programming and policy decisions did not fully consider the needs of female inmates: (1) trauma treatment programming, (2) pregnancy programming, and (3) feminine hygiene. We found that BOP may not be able to provide its trauma treatment program to all eligible female inmates until late in their incarceration, if at all, because BOP has assigned only one staff member at each institution to offer this program. We also estimated that only 37 percent of sentenced pregnant inmates participated in BOP’s pregnancy programs between fiscal year (FY) 2012 and FY 2016. We believe that participation was low because BOP inmates and staff lacked awareness of these programs, and staff may apply eligibility criteria more restrictively than intended by BOP headquarters. Further, we found that the distribution methods for feminine hygiene products provided to inmates varied by institution and did not always ensure that inmates had access to a sufficient quantity of products to meet their needs.
Lack of Gender-Specific Posts. We found that BOP’s practice of assigning Correctional Officers to posts solely by seniority has resulted in an inefficient use of Correctional Officer resources at female institutions. Male Correctional Officers are assigned to posts at which staff must regularly conduct searches of female inmates. Because the Prison Rape Elimination Act of 2003 and BOP policy prohibit male Correctional Officers from searching female inmates, female Correctional Officers must leave other assigned posts to conduct these searches.
· Negative Impact of Federal Correctional Institution (FCI) Danbury Conversion. We examined BOP’s 2013 decision to convert FCI Danbury from a female institution to a male institution, which resulted in 366 low security sentenced female inmates serving a portion of their sentences in Metropolitan Detention Center (MDC) Brooklyn—a detention center intended for short-term confinement. We found that at MDC Brooklyn, BOP offered female inmates no access to outdoor space, less natural light, and fewer programming opportunities than what would otherwise be available to them at BOP facilities designed for long-term confinement.
Click here to read the full report.
Wednesday, September 19, 2018
In recent days, national security advisor John Bolton has renewed his attacks on the International Criminal Court, an international treaty-based body that the U.S. has never joined. The US was instrumental in the development of the ICC and many acknowledge that its existence and practices reflect the high value that the U.S has traditionally placed on the rule of law and mechanisms of justice. While not a member, the US has at times cooperated with the ICC's investigative efforts.
For law profs who are looking for authoritative resources on the ICC, there are some excellent sources. The American Bar Association has an ICC project that chronicles US involvement in the development of the ICC and information about the body's history. The website International Justice Today, a collaborative effort between the ABA and Stanford University, provides up-to-date news, event announcements, public opinion polls, and other materials relating to the ICC.
Negative reactions to Bolton's attacks have come from all sides of the political spectrum. In a piece in The Hill, President Bush's ambassador at large for war crimes, Clint Williamson, explains why Bolton's position is against U.S. interests in the long run. Jamil Dakwar of the ACLU issued a statement warning of the implications of Bolton's threats to prosecute ICC judges, and putting the Bolton position into the larger context of the Trump Administration's attacks on human rights. Dakwar also posted a blog on this issue. In a revealing survey, Just Security reports that those governments that have endorsed Bolton's position are often themselves engaged in mass atrocities, while our traditional European allies have spoken out in support of the ICC.
Tuesday, September 18, 2018
When I heard that an additional day of congressional hearings was scheduled for Monday, I cringed. I vividly remember the Anita Hill hearings. We owe a debt to Prof. Hill. She was one of the first women to publicly take on the topic of sexual harassment against a powerful man who had the support of powerful men. Prof. Hill was not protected. She was promised anonymity by the FBI only to be brought to testify at the Thomas confirmation hearing. She experienced professional and personal criticism and retaliation. Witnesses who could have supported her claims were prevented from testifying.
Is Prof. Ford facing the same fate? She attempted anonymity but quickly was "outed". Will supporting witnesses be permitted to testify? Or will Prof. Ford be forced to testify to details of a traumatic event only to find Judge Kavanaugh confirmed? My only hope comes from the #MeToo movement. 600 graduates of Ms. Ford's high school have signed a letter of support, stating that her description of events comports with their experiences. A much smaller number of women who knew Judge Kavanaugh when he was in high school have signed a letter attesting to his good character.
Anita Hill commented on Prof. Ford's predicament. In today's New York Times, Prof. Hill reflects on how Congress can "do better". Prof. Hill said the committee must follow “some basic ground rules.”
Monday, September 17, 2018
The Inter-American Commission on Human Rights (IACHR) published last week the schedule of the public hearings that are to take place during its 169th Period of Sessions, set to be held October 1-5, 2018 in Boulder, Colorado on the University of Colorado campus. During these sessions, the IACHR will hold public hearings and working meetings on all Member States. The topics of the public hearings are: “CICIG’s role in the fight against corruption and its impact on the human rights situation in Guatemala,” "Situation of persons deprived of liberty in the context of the political crisis in Venezuela," and "Human rights of Venezuelan migrants and refugees in the Region."
The deadline for indicating an interest in participating in the hearings has passed, but the IACHR will still accept written submissions. More information is available here.
The hearings will be public. Anyone interested may attend freely without prior registration, subject only to space restrictions in the hearing room.
Kudos to the IACHR and the University of Colorado for taking to heart the idea of "bringing human rights home."
Sunday, September 16, 2018
By Guest Blogger Prof. Dina F. Haynes of New England Law School
During the summer of 2018, I, like hundreds of other immigrant rights activists, volunteered to work with children and parents who had been separated from one another by the U.S. government upon reaching the border and seeking asylum. The experience was dispiriting for me, confirming my fears that access to justice for migrants, refugees and asylum seekers is currently undergoing a slow but inexorable execution.
At its most basic level, the locations of and conditions within and around the detention centers, the places where asylum seekers are held – people who have committed no crimes, many of them very young children -- have the effect of limiting the number of people who can afford to volunteer to assist detainees. More specifically, when I compare the conditions and arbitrary rules within these centers with those in other places I have lived and worked, places decimated by violent civil war, I am struck by the fact that conditions in the U.S. are often worse. For example, I have lived in several countries barely past the formal end of violent civil wars, but I could still drink the water there. I lived in the country that had the lowest life expectancy on the planet at the time, but I could still find fresh food to eat. I have visited prisoners in some of the world’s worst facilities, but I was not told that I could not touch or even shake hands with my clients. I have sat across the table from war criminals and men intent on perpetuating their nativist agendas, but even those war criminals did not police the clothing that I could wear to the meeting.
I have been a human rights lawyer for more than twenty years, and lived all over the world. And yet, in my own country, working as an immigration lawyer volunteering my time in one “family residential center” run by a private prison company and funded by US taxpayers, I was unable to drink the water. Not only was the town’s water supply contaminated from fracking, it regularly tested positive for e coli. I had to stop on my drive in and buy a week’s worth of drinking water. I was encouraged to bring in food for the week as the quality and availability of fresh food was uncertain at best. I was prohibited from wearing open toed shoes, dresses or skirts that showed my knees, or sleeveless dresses. I could not bring in electronics that would have helped me prepare my cases, or medication that I might need, or crayons and things to distract very young children from listening while their mothers told me their stories of rape and domestic violence and dismemberment and violent murder. I could not shake hands to greet my clients, nor hug them to express empathy. Some of these rules, created by DHS and the private prison companies who operate their detention centers, are designed to dehumanize the detainees. Other rules are designed to complicate the work anyone who volunteers to assist those detainees, and to deter them from those efforts.
In the past several years, two private prison companies, GEO Group and Core Civic, sustained by US taxpayers, and emboldened by their multi-billion dollar annual contracts with DHS, have opened up detention facilities in the most remote, inaccessible and uninhabitable parts of the US. The remoteness and inhospitable conditions seem intentional. Located as they are, hours away from grocery stores, hotels and other services necessary for an out of town lawyer seeking to provide representation (or family member of a detained person), the number of skilled representatives who can get to these locations and wait while immigration judges and asylum officers schedule hearings, is limited.
All immigration lawyers have been overwhelmed by the regular changes to immigration law, policy and procedures enacted daily since the Trump Administration came to power. The sheer volume and frequency of these changes indicates that they are designed in part to keep lawyers scrambling to update their knowledge and arguments. People perpetually in emergency mode have a harder time engaging in longer term strategizing and impact litigation. Combined with the remoteness of the centers in which asylum seekers are detained, it looks as if the US government is making every effort to render the representation of immigrants by counsel as difficult, burdensome, costly, and mentally and emotionally draining as possible. It is as if the government of the United States is intent on eliminating public interest lawyering on behalf of immigrants by erecting inhumane barriers to access.
I have worked all over the world as a human rights lawyer, where part of my job was defending the rights of local human rights activists being targeted by their own governments. Now, it appears, I am the target. This statement is not meant to compare the burdens faced by myself and other immigration lawyers in the US with rights activists elsewhere who risk being jailed or killed for their work. It is meant to call attention to the slippery slope that we appear to be on. Hungary recently outlawed the representation of asylum seekers. It is now illegal in that country to provide legal advice to asylum seekers and refugees, and those who do can be criminally prosecuted. Those who teach these issues in Hungary have had a tax placed on the instruction, designed to be so burdensome as to eliminate that instruction. How far along this path are we?
Several months ago, in a speech delivered at a federal building, the Attorney General of my own country referred to me and those in my profession, as “dirty”. He was at it again last in September when, speaking to a group of newly invested immigration judges, he said "[g]ood lawyers, using all of their talents and skill, work every day—like water seeping through an earthen dam—to get around the plain words of [immigration law] to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty.” Incomprehensible metaphors aside, he implied that immigration lawyers work to thwart the law, while immigration judges must work to enforce it. The job of an immigration judge is to adjudicate, not to enforce. The job of DHS is to enforce. That is an entirely different agency than the one that the Attorney General heads. As the superior officer of immigration judges across the country, who do work for DOJ and are therefore subordinate to him, he attempted to once again impugn the integrity of immigration lawyers. The name calling by the “highest lawyer in the land” alone is incredible. The threat to the rule of law and the implication that he effectively heads not one but two federal agencies is terrifying.
Immigration lawyers, among them many of my former students, continue to meet the government head on. Despite the name calling, the barriers erected, the cruel and arbitrary daily procedural changes designed to keep everyone off balance, we are persisting. Immigration lawyers are giving weeks of their lives, giving up time with their families and loved ones, to travel to these remote and resourceless places. We should have a system that does not place this heavy burden on a few, but until we have that system, immigration lawyers are working together to support one another, to persist through periods of frustration and hopelessness -- to overcome the hurdles erected by the government in the short term, and eradicate those hurdles in the longer term. It may not yet be apparent to all, but our democracy and our historical role as a country deeply respectful of human rights depends on this work.
Thursday, September 13, 2018
The #metoo movement . . . abortion rights activists and clinic escorts . . . opponents of violence against women and advocates for fair pay . . . yes, there are plenty of women human rights defenders right here in the U.S., and the current political climate makes their situation ever more precarious.
The UN Special Rapporteur on the Situation of Human Rights Defenders, Michael Forst, is preparing a thematic report on women human rights defenders and seeks input from civil society. Here's the link with info on how to submit a short report. The deadline is September 28.
Wednesday, September 12, 2018
Starting in 2019, the World Surf League will award equal prize money to men and women. The pay disparities had been quite significant, with some men's prizes double those available to women. "Did the girls surf a different ocean that was easier we don't know about?" asked one observer.
Opposition to sexism in the sport has been building for some time. In a 2010 Masters thesis, Richelle Reed concluded that "even though women have faced near complete exclusion from the sport, they are still courageous and surf and continue to fight male dominance in surfing and sports, in general." But pressure for gender equity has been building rapidly since then, and has been particularly pointed since the founding of the Committee for Equity in Women's Surfing (CEWS) in 2016.
State law factored into the World Surf League's decision to equalize prize money. Earlier this year, the California State Lands Commission, responding to advocacy by CEWS, declined to issue permits for a major surfing competition on the California coast unless men and women competitors were awarded the same prize money.
More background on the history of sexism in surfing, which ranges from sponsorships to board design, is available here.
Congratulations to CEWS for this important victory for women in sports!
Tuesday, September 11, 2018
This month the US Human Rights Commission issued its report Contemporary Civil Rights Challenges: A View From The States. The report results from a survey of the 50 states' local civil rights advisory committees.
The top civil rights concerns revealed by the survey are race/color, administration of justice and voting rights. Other concerns are education, criminal justice, freedom of expression and civil rights enforcement.
Some of the specific concerns raised include voter suppression, Native American rights, the tension between religious liberty and non-discrimination laws, LGBT rights, cost of education and many others. The report also addresses geographic differences and national trends.
Monday, September 10, 2018
Francisco Rivera sends along this announcement from Santa Clara University:
The Katharine & George Alexander Law Prize Committee is seeking nominations for the 2019 recipient of the annual Katharine & George Alexander Law Prize. The Committee also encourages the sharing of this message with friends and other contacts for additional Prize nominations.
Katharine and George Alexander created the Prize in 2008 to bring recognition to those who have used their legal careers to help alleviate injustice and inequity. Along with the recognition associated with the award, each recipient also receives a generous cash prize.
Nominees for the Prize must be advocates who have used their abilities in the field of law and shown brave commitment to alleviating injustice and inequity.
The past four recipients of the Prize are:
- Emily Arnold-Fernández, Executive Director of Asylum Access, a leading global refugee human rights organization (2018)
-Maria Foscarinis, founder and executive director of the National Law Center on Homelessness & Poverty (2016);
-Martina E. Vandenberg, founder and president of The Human Trafficking Pro Bono Legal Center (2015);
Nominations should be prepared on the form found
Supporting materials explaining the merits of the nominee for the Prize can also be provided through that form. The deadline for submission of nominations is October 1, 2018.
Sunday, September 9, 2018
Between August 21 and today, a nationwide prison strike has been in progress. Incarcerated individuals across the nation have protested in various ways. Some stopped working their often grueling jobs that pay two to three dollars a day, sometimes less. Others have engaged in hunger strikes while many refused to purchase items from the prison commissaries. Commissaries charge hugely inflated prices. Strikers are particularly courageous as prison retaliation can be fierce, including solitary confinement.
One of the major issues that prompted the protests is the poor quality and often dangerous food served to the prisons. A Center for Disease Control study found that incarcerated people are more than six times more likely to get a food borne illness than other individuals. Many states' prison food does not meet the state's own minimal nutritional standards. The privatization of prisons, and prison food delivery has made conditions even worse as the quality of food deteriorates to make prisons and private corporations more profitable.
Other concerns include ending forced labor, creating humane prison living conditions and developing prison policies that prioritize the humanity of the incarcerated.
Thursday, September 6, 2018
For September 2018, the U.S. -- represented by Ambassador to the United Nations, Nikki Haley -- assumes the chair of the UN Security Council. Planned activities to be spearheaded by the U.S. include a meeting on Iran, chaired by President Trump, and the launch of a high-level initiative against global narcotics at which President Trump will speak.
Meanwhile, a close Trump ally, President Morales of Guatemala, has barred the entry of a UN official heading an anti-corruption investigation into Morales' administration. The Guatemalan high court has given Morales until Friday to justify the ban.
The U.S. withdrew from the UN Human Rights Council earlier this summer, and President Trump has had harsh words for the UN in the past, but Ambassador Haley has apparently "shown Trump how the world body serves his purposes." Unfortunately, those purposes do not include protecting human rights.
Last week, stepping down from his post as the UN High Commissioner on Human Rights, Zeid Ra’ad Al Hussein offered a sobering assessment of the situation. While a growing number of world leaders are eager to inflate their images by harming migrants and other vulnerable members of society, "mediocre" politicians stand back and fail to offer any alternatives. Zeid's prescription? Grassroots human rights leaders offer the best hope for the future. Mobilization is the key.
Wednesday, September 5, 2018
The April 2018 issue of the Family Court Review (v. 56, Issue 2) includes a special section on children's human rights under the Trump Administration. An introduction written by the special section editor, Professor Barbara Stark, is available on SSRN. More information on the special issue, which includes an article by HRAH blog contributing editor Jonathan Todres, is here. Other special issue contributors include Nancy Dowd, Jane Spinak, Clare Huntington, Martina Guggenheim, Solangel Maldonado, and more. Kudos to Barbara Stark, who is also a contributor to this blog, for developing this forum for scholars to raise their voices!
Tuesday, September 4, 2018
Today was the beginning of confirmation hearings to determine whether Brett Kavanaugh will be the next US Supreme Court Justice. While odds are that Kavanaugh will be confirmed, there are a few Republican senators who appear ambivalent. One consideration that might drive those Republican to a confirmation vote is knowledge of who else is on the President's list of nominees. The question for many might be "How do you vote when you disapprove of the candidate, but fear that the next nominee will undermine constitutional rights on an even broader scale?"
Republicans claim that victory will be theirs, but they act otherwise. Litigators would probably be sanctioned for withholding discovery until the night before the first day of trial. Yet, not trusting fair play, 42,000 documents related to Kavanaugh's work at the White House under President Bush were released only last night. As one senator said, they would have to read at a rate of 7,000 pages per hour to read the documents prior to the start of the Kavanuagh hearings. Yet another 100,000 documents are being withheld altogether under cover of "executive privilege."
When some argue that the next supreme court justice will decide the future of the constitution, there is great reason for that concern. Since President Trump's election we have seen one attempt after another to undermine due process. From the torture of immigrants, to attacks on our systems, including the media and the Justice Department, it is clear that the President does not respect the rule of law. That the next Supreme Court justice could promote the agenda of a president who disdains law and protocols frightens an already frightened opposition.
Despite their concerns with fair play, some senators are focusing on doing their job by examining the candidate on issues of grave concern. Senator Whitehouse spoke of the Roberts' court's unwavering support of corporations over individuals and over human rights. Senator Whitehouse pointed out that in 73 cases Robert's "gang of five" sided with corporations. Senator Whitehouse particularly noted the Jesner v. Arab Bank, PLC, decision which shields US corporations from human rights abuse lawsuits under the Alien Tort Act.
What is clear from these hearings, once any Trump nominee is confirmed, human rights lawyers must think carefully not only about which cases to bring before the court, but more importantly which cases not to bring before the court. Preservation of constitutional rights might be better served by restraint.