​My earliest political memory was November 3, 1992, watching my mom watch the election returns. This was followed soon by my rushing around my elementary school “informing” every teacher and student I saw that Bill Clinton had won the presidency the night before.
 
The reaction was, in hindsight, predictable. The students didn’t care. The teachers politely indulged in my admittedly harmless delusion that I was the official purveyor of political news.
 
“Did you know that Clinton won???”
“Wow, I hadn’t heard that! Pretty great…” they say, nodding along and smiling.
 
I didn’t know Bill Clinton’s economic platform. I had a vague recollection of watching him sexily play the saxophone. But watching my mom watching the results at the end of what had been a really difficult year for us, I could tell that things were feeling possible again. And to paraphrase his theme song, at that moment we began thinking about tomorrow.
 
Like many, though amused by the late-night humor that emerged from the 2000 election cycle, I stood aghast as I watched the 2000 election night and the resolution of the Florida recount, which I sometimes have the misfortune of reliving when I teach Bush v. Gore in my Constitutional Law classes.
 
537 votes.
 
537 votes in a state that at the time had a population of just over 16 million.
 
Though I have not lived much of my life in key states or districts, I have (for better and worse) always been in love with political participation, whether that meant pestering high school teachers to vote on key ballot measures when I was not yet 18, informing (okay, maybe “informing”) high school teachers about key issues on the legislative agenda about which they should call Senators Feinstein and Boxer, “informing” Iowa voters of the importance of caucus participation, or knocking on doors and phone banking for the 2004 presidential election cycle (I was 24 days too young to vote in the 2004 election – not that I was counting – and I was skeptical that I’d successfully petition for my voting rights on the grounds that I would have been eligible to vote if I’d been born on time).
 
I remember the night of November 2nd/early morning November 3rd, a night on which I had at that point never before cried so inconsolably, and counted down the days until I could register to vote on my 18th birthday. And as the conflict in Iraq intensified and as I watched people I knew go off to Baghdad, I wondered how many more Democratic voters in Ohio could have made the difference.  
 
But the truth is, voting is not just about calculating the extent to which our vote will be pivotal. It is about civic duty. And it’s about joining the chorus of the millions standing up injustice that we see in our communities and the nation as a whole. And it’s about supporting candidates and policy agendas that we think will help us to build a better tomorrow.
 
This has never resonated with me more than one a civil rights trip that I took through the Deep South when I was 18. It began with meeting civil rights icon and Congressman John Lewis, with whom I talked about how not to get disillusioned in the face of electoral defeat or the murder of movement leaders. We walked across the Edmund Pettus Bridge, the site of Bloody Sunday, during which Congressman Lewis’s skull was fractured amid the beatings of white supremacist police forces. And we went to grave of James Chaney, one of the slain civil rights workers in Freedom Summer.  
 
And when graduating high school and receiving the social studies award from my favorite teacher, in roasting me he said that being my teacher meant that the day started with a list of important things that were going on in the news, lunch involved getting a couple of op-eds to read, and the school day ended getting a list of senators to call about issues on the legislative agenda. And he said I was the only student he had had who cried watching documentaries about voting rights.
 
To be honest, I haven’t changed much in the last 13 years.
 
And while I try to limit the extent to which my partisan preferences show in class, I am unabashed in my effort to instill in my students the importance of voting, a right for which people have died or been beaten in our parents’ lifetimes. Indeed, when teaching Constitutional Law and going over voting rights, I give my students the notorious Louisiana literacy test as an in-class activity without telling them beforehand what it is. Their responses are consistently some combination of being befuddled and aghast. And I remind them of how recently these were administered. (When I give them the Alabama literacy test, which had absurdly detailed questions about American government –  e.g., “Of the original 13 states, the one with the largest representation in the first Congress was ____”, “If a state is a party to a case, the Constitution provides that original jurisdiction shall be in ____”, and “If it were proposed to join Alabama and Mississippi to form one state, what group would have to vote approval in order for this to be done?” – my students generally mistake it for a citizenship test.)
 
Despite some Americans’ fantasies that race-based discrimination is a thing of the past – hey, Chief Justice John Roberts seems to think so! – the reality is that these atrocities were within my parents’ lifetime. What’s more, subtler tactics have persisted, even exacerbated with Kris Kobach, Brian Kemp, and others’ efforts at voter suppression and the fueling of voter fraud conspiracies to justify restrictive measures. And while courts have struck down some of the egregious voting maps and voter suppression tactics, some remain intact and others may be discouraged that the election may already be rigged.
 
In Shelby County v. Holder, the Supreme Court invalidated the formula according to which states with histories of discriminatory voting practices had to first petition the federal government for approval (that is, this preclearance mechanism helped to stop discriminatory practices before they went into effect), and southern states have taken notice. Indeed, Kemp’s efforts to secure the governorship (while administering the election as Georgia’s Secretary of States) look like Jim Crow by another name.
 
We have read about the civil rights movement in history and political science textbooks. And many of us have wondered what we ourselves would have done if living in that time.
 
Now is the time to find out.
 
I have waited in long lines to vote, and I have never missed an election, even the seemingly endless special elections and ballot propositions when I was voting absentee in California. When I lived in St. Louis I cast my ballot for Hillary Clinton in the Missouri primary while I was still in the intensive care unit. I had just regained consciousness, realized it was Election Day, and pleaded with the hospital staff to help me to vote. (Incidentally, that did turn out to be an extraordinarily close election.)
 
At the end of the day, my votes have not been conditional upon my expectation that my vote would make the difference in the election of Barack Obama versus John McCain or Mitt Romney, Jerry Brown versus Meg Whitman, Hillary Clinton versus Donald Trump, Ned Lamont versus Bob Stefanowski.  
 
It has been because of a sense of civic duty to use this voice that I have to support the candidacies of those I support, and who will help to move America forward and knock down barriers to our most sacred right in our democracy. And it is because of my memory of walking across the Edmund Pettus Bridge and the exchange that Congressman Lewis had with a fellow civil rights activist. “Can you swim?” Hosea Williams asked Lewis as they saw the state troopers ahead of them. Lewis didn’t know how to swim, and he pressed on in the march, to be bloodied and beaten in defense of the right to vote.  
 
These fights cannot have been in vain.
 
Vote. Vote like our democracy depends on it, because it does. 

​Heartbreaking. Infuriating. Degrading. Surreal. Galling. Shaming. Powerless.
 
Those aren’t the words I’m using to describe the rapes that I experienced while a graduate student at Columbia University. They are the words I am using to describe the feeling of my government dismissing experiences of sexual assault from which I have endured lasting trauma.
 
To be sure, the two rapes that I experienced have cost me greatly – years of productivity at work, years of happiness, an amount of time and money in therapy that would be too depressing to count, and it nearly cost me my life as my depression and PTSD symptoms escalated to suicidality. I have told friends. I have told doctors. I have told therapists. But I never reported to the police, and I knew that I never would.
 
The first rape was November 8, 2012 – six years to the day before sexual predator Donald Trump won the presidency. I was out celebrating President Obama’s reelection, having just returned to NYC from the campaign in Pennsylvania, where I worked for the home stretch of the election. Beers were followed by tequila shots, which were followed by Jager Bombs, which were followed by more beers. A cute man just a few years older than I smiled and bought me a drink. We flirted and kissed briefly.
 
Then I stood up, and as the room continued to spin wildly around me, I fell to the floor, then crawled my way to the bathroom, where I vomited profusely. Careening out of the bathroom and through the bar toward the exit, I paid my tab and told the man that I drank too much and was going home. As I reached for my coat, I fell to the ground again, noticing its stickiness now coated to hands, and regaining my footing, I walked out in search of a cab for the 25 blocks uptown to my apartment. He insisted that he take me home. I deliriously kept saying simply, “I’m just going home,” and I got a cab, and it took me a few minutes to realize that he was in the cab beside me, where I spent most of the ride trying (with mixed success) not to vomit more. When we arrived at my building, I did not invite him upstairs, and simply kept saying, “I’m just going home. I’m just going to bed.” Those are the only words I remember saying as I strained to make my way up the stairs to my 6th floor apartment (the elevator was out of service, with progress toward fixing it delayed by Hurricane Sandy). And then I passed out fully clothed on my bed.
 
When I woke up (I don’t know how long later), he was on top of me and inside me, and as I began to realize what was happening and struggled, he covered my mouth with his hand, before moving on to a type of sex with which I had at the time been inexperienced and that elicited a blinding pain. When he finished, I told him to leave. Leaving his name and number on my dresser as though it were a consensual hookup, he walked out the door, and I cried.
 
The next morning, I did all of the wrong things. I stripped the bed, wanting to be rid of his scent. I took the longest shower of my life, weeping as water beat down my trembling, bruised, and bleeding body and as I struggled to catch my breath. And when I went to the campus health center to find out whether I should be tested for STDs or whether they should preemptively treat for them, the doctor’s first question had been whether I had been drinking and whether I was sure that I said no. And that was it. (The doctor spent so much time researching the risks/benefits of STD testing vs. preemptive treatment that they ran out of time and sent me off without anything but a number for their counseling services.)
 
It was demoralizing. I knew rationally that it was not consensual. I had not invited him in to my apartment. I had been falling down and vomiting and passed out (a state in which I rarely find myself, thankfully, but it was a special occasion), so clearly I was not in a condition to consent. When I began to regain consciousness, he resisted my struggles. He did not use a condom. Yet the doctor viewed this as a drinking issue rather than a sexual assault issue, an exchange that hardly inspired in me the confidence to report anything further. I went to the graduate student workspace on campus, pretending to work but unable to concentrate, and after meeting with my advisor regarding a work matter, I had lunch at Tom’s Restaurant with a close friend from graduate school and I told him. And he listened. And I cried. And he let me cry.
 
For months, I threw myself into work as a distraction, sometimes working over 100 hours a week on data collection so as to leave less room in my mind for flashbacks. My relationship suffered, because even as loving and sensitive as my boyfriend was, sex had become loaded with negative associations, with flashbacks, with panic attacks. And when the relationship ended and the structure of the semester as well, the amount of space in my room to fixate on those events of November 8, 2012 terrified me.
 
And it confused me, because I felt as though a bad sexual experience should be more easily overcome, even forgotten. (Though of course I know that it’s not simply sex, but rather issues of power and control). All I knew was the shock and panic with which I reacted when touched unexpectedly, and the difficulty with which I was able to build trust with people, especially men, even though I didn’t fully understand why I experienced this with such magnitude. And I wanted to convince myself that sex was meaningless, something unworthy of derailing my personal and professional life.
 
So I had sex. A lot of sex. With a lot of people. (Sorry, mom.)  Hell, I was single in my mid-to-late 20s in New York City, so why not? I told myself that it was meaningless, so that remembering November 8, 2012 wouldn’t hurt so much, though it didn’t quite work out that way. And these antics were consequence-free for a while – I was always safe, and met nice people with whom I was simply not pursuing anything serious. But as I began a new antidepressant and prepared to go on the academic job market, I decided to lay low for a while and focus on work.
 
Until June 1, 2014, when I was watching the last 4 innings of a Mets/Phillies game in the Flatiron, waiting for a friend who due to MTA delays had decided at the last minute to do a raincheck. I met someone who seemed friendly, and we talked for an hour or so, and I stopped drinking so that I would be (more or less) sober for whatever followed. He invited me over for a glass of wine and I said yes, and when we arrived at his apartment, we opened a bottle of wine and began to talk (I don’t remember about what), then kiss, hands beginning to wander a bit. When I told him that I wanted to make it an early night and didn’t want to have sex, he was visibly annoyed, and hoping to talk me out of it as he reached up my skirt and I pushed his hand away. His kissing got rougher, and I pulled away, reaching for my purse so that I could try to make an exit, but he pushed me on to the bed, pulling down my clothes and holding me down firmly, enough for bruises to form around my neck and wrists. He turned me over so that I was lying on my stomach, his hands pressed on my back so that my face was smashed into his pillow until he finished.
 
And then I dressed and left, sobbing and trembling as I walked from his East Harlem apartment to my West Harlem apartment sometime around midnight. And as I curled up in a ball in my bed – the same bed on which my first rape occurred – I cried myself to sleep. The next morning, I put concealer over my bruises and taught my summer session course on constitutional law.
 
Again, I did not report. Especially given the campus health center’s callous reaction to the first assault, I could not imagine the number of questions that I would be forced to endure if I did so. Was I drinking? (Only a little – two drinks over four hours.). What was I wearing? (A skirt and t- shirt – nothing too alluring, not that it should matter.) How many sexual partners had I had? (Probably irrelevant.) If I didn’t want to have sex with him, why did I agree to a drink in his apartment? (Because I assumed – I thought reasonably – that there could be a few steps between a drink and flirtation and sex, and most men I knew understood and respected the word “no.”.) Why was this the time that I decided I didn’t want to have sex? (Because I simply didn’t want to, and every time I resisted, he got violent, which reinforced that I was not with someone who would respect my boundaries.)
 
I wanted to forget it all, though no amount of therapy and medication could help me to not feel their touch when I was with other men, even other men I trusted. And it is difficult to explain to a new partner why I have such visceral reactions to one moving too quickly or too aggressively (even within the realm of consent), or why certain sexual activities won’t be on the menu with me. My physical health worsened as I became worse at keeping up with medication regimens and appointments, and I contemplated dropping out of graduate school altogether. And eventually, it seemed easier to not exist than it was to heal, though my multiple severe intentional overdoses have shown to me that I’m not very good at ceasing to exist either.
 
I have struggled for years (with mixed success) to forget, to forgive, to heal. My depression has led me to an ICU with a tube down my throat. But even at my worst, I felt as though I was struggling because I had the misfortune of experiencing the bad the actions of a couple of bad people, in a world where people were generally on my side. Republicans’ defense of Donald Trump after the Access Hollywood tape, and now again as they dismiss Dr. Ford’s attempted rape allegations against Judge Brett Kavanaugh, is the time when I have felt most violated because it is my government legitimizing the actions of my rapists. This government is now saying that rapes that were a certain amount of time ago don’t matter, and that the most consequential legal and policy issues our nation faces should be able to be handled by people who themselves have committed sexual assault.
 
I do not know all that Dr. Ford has gone through, and I won’t pretend to. But I know the feeling of powerlessness and fear that consumes one when a man lies on top of you, stifling your cries for help, and not knowing what will happen next. I know the ambivalence of wanting closure versus wanting to erase the memories altogether. I know the anger toward men in bars and other such places when they more innocuously disregard consent with a wandering hand and the ignoring of personal space, and not knowing whether the anger is more from the present encounter or from the prior assault. I know the lasting fear in future sexual encounters, and the uncertainty of how to rebuild trust with people. I understand that while some moments from those nights feel as so vivid that they could have happened just yesterday, others are hazy memories (whether from alcohol or defense mechanisms, or some combination). And I understand a reticence about painful and uncomfortable reporting about sexual assault, lest one be subjected to uncomfortably personal questioning, accusations of crying rape when simply regretting the sexual encounter, or being ignored altogether so as to protect the reputation and career of the accused.
 
Indeed, looking at the probability with which those committing sexual assault are held accountable, there is very little incentive for survivors to endure the retraumatization of reporting.
 
I am grateful for Dr. Ford demonstrating the courage that I lacked (though as far as I know, those who assaulted me are not in politics or prominent positions of power). She should be rewarded for speaking out about someone who not only would be the deciding vote on women’s health care in a lifetime position on our nation’s highest court, but has himself been nominated by someone who boasted about committing sexual assault. That reward for testifying should not come in the form of being patronizing, with Lindsey Graham saying, “I’ll listen to the lady, but we’re going to bring this to a close.” Dr. Ford should not simply be given time in which to testify, but she should be respected, and she should be heard.
 
When the government signals that it is on the side of those who commit sexual assault, perpetrators win, because they see a world of consequence-free assault. And while the #MeToo movement has certainly empowered many of us to actively assert our rights, the message on November 8, 2016 was loud and clear: committing sexual assault is not a disqualifying characteristic for the President of the United States.
 
In 1991, America similarly saw the Senate’s callous disregard for the compelling testimony that Anita Hill provided regarding sexual harassment by then-Supreme Court nominee Clarence Thomas. It would be nice if the Senate could show that it has evolved since then, but the upcoming hearings are being treated with even less seriousness in terms of the witnesses involved and the Senators’ comments regarding their determination to confirm Judge Kavanaugh despite these serious allegations. With Senator Graham and others expressing concern about ruining the life of Judge Kavanaugh by investigating these claims, it is crystal clear that the Senate Republicans are forgetting the life that was really ruined: Dr. Christine Blasey Ford, and the sexual assault survivors across the nation who are wondering if their government or communities would protect them, and if not, whether they should keep secret the sexual violence to which we’ve been subjected.
 
When the Republican men on the Senate Judiciary Committee ask in the upcoming hearings why Dr. Ford didn’t report the incident at the time that it happened, I hope that they have some mirrors handy. 

​On July 8, 1974, the case of United States v. Nixon was argued before the United States Supreme Court. Despite the Court’s formal term having ended, it was faced with executive privilege claims filed by the President of the United States, Richard Nixon.

On July 24, 1974, the Supreme Court ruled unanimously in an 8-0 decision (Justice William Rehnquist recused from the decision) that President Richard Nixon must comply with the subpoena and produce the tapes and documentation pertaining to the Watergate investigation. With the unanimous decision delivered by Chief Justice Warren Burger, the Court held that the President of the United States did not have an absolute right to executive privilege to withhold information pertinent to an investigation: “The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III… [W]hen the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.”

On August 8, 1974 – exactly one month after United States v. Nixon was argued before the Supreme Court -- President Nixon announced his resignation, avoiding the all but certain impeachment proceedings.

This year, President Donald Trump nominated for the position of Associate Justice a man who views this decision as being wrongly decided in the heat of the Watergate controversy: “But maybe Nixon was wrongly decided -- heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently… Maybe the tension of the time led to an erroneous decision.”

These were the words of Judge Brett Kavanaugh at a roundtable discussion in 1999 on the subject of attorney-client privilege. And they are words that are highly salient under the Trump Administration, which has been characterized by broad assertions of executive branch authority and in many cases, a blatant disregard for norms and separation of powers. Judge Kavanaugh also expressed the view that the Court might have done well to stay out of this legal dispute altogether, rather than weigh in to this contentious issue of intra-branch disputes amid scandal. That said, in 1998, he wrote that “Congress should codify the current law of executive privilege available in criminal litigation to the effect that the President may not maintain any executive privilege, other than a national security privilege, in response to a grand jury or criminal trial subpoena sought by the United States. That rule strikes the appropriate balance between the need of federal law enforcement to conduct a thorough investigation and the need of the President for confidential discussions and advice.” While this would suggest some view of limits on the scope of executive privilege, he views Congress as being responsible for defining that authority, and this ambiguity in his position on the scope of executive privilege – an especially significant area of law today – is troubling at best.

Where Judge Kavanaugh stands now – whether thinking United States v. Nixon was an erroneous decision or whether Congress should codify a limited executive privilege – will be vital to assess over the course of the confirmation process. Moreover, it is important to know how Judge Kavanaugh – if acting as Justice Kavanaugh – would view weighing in on such salient matters of curbing the exercising of presidential powers.

It is not uncommon for advocates of judicial restraint to guard against the Supreme Court ruling based on the passions of the times, instead grounding themselves in the text and original meaning (or so they say) while leaving several other policy issues to be resolved by the elected branches and the states. But there is a great difference between avoiding judicial activism and committing judicial abdication.

While Alexander Hamilton viewed in Federalist 78 that the Supreme Court would be the weakest branch of government, having neither force nor will and only judgment, at many points in our history the Supreme Court has been (often to conservatives’ chagrin) a significant vehicle for social progress, and has operated as a vital check on the other branches should they test the limits of their constitutional authority. Indeed, we know that the framers were concerned about vesting too much authority in the executive branch, lest they create a figure not unlike the king against whom this young nation had just rebelled. The Roberts Court has certainly been a far cry from the role that the Warren and Burger Courts played, though its role in guarding against excess executive branch authority is no less crucial.

In Trump v. Hawaii, the Court’s 5-member majority that upheld the Trump Administration’s travel ban viewed the Executive Order as not an issue of First Amendment violations (Chief Justice Roberts noted the absence of the word “religion” in the text of the Order, thus suggesting a facial neutrality and opposing the dissenters’ reliance on extrinsic sources to judge animus toward a religious group). Rather, Chief Justice Roberts emphasized the immigration and national security issues that fall squarely in the powers of the presidency. One of the enduring problems associated with this holding is that it established a precedent according to which one can justify discriminatory policy under the deferential rational basis test rather than the strict scrutiny that would be otherwise applied, provided that there is a connection (however tenuous) to national security. Thus, the Court ushered in an expansion of the president’s latitude to assert broad authority in the name of a legitimate government interest of security.

It is all the more important that the next Supreme Court justice demonstrate a commitment to (or at minimum, a willingness to) guard against excess assertions of executive branch powers, and that the Senate’s votes reflect this core concern that transcends (or should transcend) partisan identification.

President Trump has not only pardoned some truly reprehensible figures (e.g., Joe Arpaio), but he has floated the possibility of pardoning himself, a move that while not explicitly prohibited under Article II, would be based on a faulty assumption that the President of the United States is above the law. And this issue has thus far been untested in the courts.

Judge Kavanaugh has not proven himself to be a man who will hold such a president accountable for wrongdoing.

Indeed, in 1998 he wrote, “The President of the United States is not subject to indictment or information under the laws of the United States while he serves as President” (p. 9). Such a claim of presidential immunity leaves little question as to why President Trump would be attracted to the notion of a Justice Kavanaugh taking the place of Justice Kennedy, who had been the Court’s median justice. But it hardly provides comfort to an American public who not only view the president unfavorably, but rely on the other branches to operate as real, not just theoretical checks on his authority (especially as the majority party in Congress continues to enable him).

Judge Kavanaugh’s views on the president’s ability (or lack thereof) to be indicted have been demonstrated in other contexts, writing in 2009 that indicting a sitting president “would ill serve the public interest, especially in times of financial or national-security crisis.” Thus, Judge Kavanaugh weighs the competing interests of the expediency with which the president can operate in his day-to-day duties against the interest that the American people might have in a corruption-free government, or at least effective inter-branch oversight. Time and again, he has prioritized the former over the latter.

While judges can often be reticent about their views of Supreme Court precedents – and indeed, appellate judges’ preferences can at times be difficult to discern because they are bound by Supreme Court precedent – in a 2016 event with the American Enterprise Institute, Judge Kavanaugh expressed a desire to “put the final nail” in the 1988 Supreme Court precedent of Morrison v. Olson (decided 7-1 with Justice Kennedy not participating and with a prominent dissent by the late Justice Antonin Scalia). While this holding evaluated the constitutionality of the creation of the independent counsel under the Ethics and Government Act (1978), which expired in 1999, and while there are distinctions between the roles of independent counsel and special counsel (the latter being the capacity in which Robert Mueller serves currently), Judge Kavanaugh’s candor here is revelatory, and consistent with his broader pattern of sweeping views of presidential powers. That is, Morrison v. Olson fundamentally strikes at the question of whether Congress is constitutionally capable of creating an independent investigative authority within the executive branch that is not directly controlled by the president who is under investigation.

Setting aside the applicability of this holding to Special Counsel Mueller, it does not require much power of imagination to consider why opposition to Morrison v. Olson and to United States v. Nixon should elicit more than simply a furrowed brow and a concerned tweet. Rather, it sheds important light on the scrutiny with which a Justice Kavanaugh would evaluate the firing of Special Counsel Mueller, and the extent to which he would reject thorough investigation of the president’s conduct while in office.

There are substantive reasons for both parties to be concerned about Judge Kavanaugh becoming Justice Kavanaugh, with Republican Representative Justin Amash rightly sounding alarm bells about Fourth Amendment considerations that should appeal to libertarians, and Democrats rightly sounding alarm bells on issues pertaining to reproductive rights and beyond. But the stickiness of reshaping our understanding of the balance of power among the branches is not something that should be taken lightly along with the rest of Senator McConnell’s political opportunism.

Amid polarization and gridlock, it is common to bemoan the inefficiencies of our system of government. But inefficiency in American politics is a feature, not a bug. It is aimed at safeguarding stability and predictability in the law, and requiring broad support to advance and establish the legitimacy of new constitutional provisions and procedures. And to give a lifetime appointment on America’s highest court to a man who values efficiency over rule of law, especially amid a president intent on defying such norms and rules, is nothing short of reckless.

On July 9, 2018, the 150th anniversary of the ratification of the Fourteenth Amendment, President Trump announced his nominee for Associate Justice of the Supreme Court, filling the vacancy left by Justice Anthony Kennedy, who had been the swing vote on the Supreme Court. This leaves Supreme Court nominee Brett Kavanaugh (DC Circuit) in a potential position to reshape law in areas ranging from reproductive rights and health care to LGBT rights to voting to presidential powers to administrative law and discretion to agencies’ interpretations. The Senate Democrats, though in a week political position, must be poised to press Judge Kavanaugh on a number of areas of law that will be troubling to a number of Americans across the nation.

In light of post-Bork Supreme Court nominees’ general reticence about their views on precedent, their personal and political beliefs, and hypothetical cases, senators asking Judge Kavanaugh questions about his agreement with precedent will likely be relatively fruitless (though they should note that despite invocations of the “Ginsburg rule,” then-Judge Ginsburg was quite candid about her views on abortion politics, thus limiting nominees’ ability to rely on it to deflect). While we can make conjectures about his views on Roe v. Wade and Planned Parenthood v. Casey based on his being on the Federalist Society list, asking him about Roe might not be that illuminative. However, in a number of cases, the Supreme Court has laid out quite vague standards that would allow judges to reach quite different interpretations of their proper application. Thus, I have proposed below the following questions for members of the Senate to ask Judge Kavanaugh, which seek to highlight his interpretation of the scope of existing precedents, how he reached prior decisions, the authorities that he consults in reaching decisions and the balancing of competing rights, and seeking clarification on controversial remarks that he has made:

Reproductive Rights

1) While Roe v. Wade is the central abortion law holding on which many focus, Planned Parenthood v. Casey is the holding according to which we now judge the constitutionality of states' restrictions on abortion access. What is your understanding of what constitutes an undue burden or a substantial obstacle within the meaning of Casey? How do you feel that Casey compels justices to identify whether abortion restrictions are motivated by health and safety or by efforts to dissuade abortions? How do you interpret this Supreme Court precedent as clarifying how the state balances its interest in life and potential life?

2) While the Burwell v. Hobby Lobby holding was technically in regards to closely-held corporations' ability to exercise religious freedom in their decisions regarding health coverage for employees under the ACA, it affirmed notions of corporate personhood as also laid out in Citizens United, and expanded the 1st Amendment protections afforded at least some corporations. Indeed, Justice Ginsburg, in her dissent in Hobby Lobby, wrote that there as "little doubt that RFRA claims will proliferate, for the Court's expansive notion of corporate personhood -- combined with its other errors in construing RFRA --  invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith." How limited in scope do you see this holding as extending? That is, to what extend do you view it as laying the groundwork for more corporations to claim religious exemptions, and how (if at all) as a judge would you ascertain the sincerity of religious beliefs espoused by those in corporations? 

3) In a speech at the American Enterprise Institute, you appealed to Justice Rehnquist’s dissent in Roe v. Wade, and in doing so criticized the majority’s creation of unenumerated rights. You said, “Rehnquist’s dissenting opinion did not suggest that the Constitution protected no rights other than those enumerated in the text of the Bill of Rights. But he stated that under the court’s precedents, any such unenumerated right had to be rooted in the traditions and conscience of our people,” and that while Justice Rehnquist’s view was in the dissent rather than the majority, “he was successful in stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.” Given the precedents of Griswold and Roe, as well as the broader notions of privacy that have been upheld by the Court, how would you define the proper extent of unenumerated rights, and on what authorities would you rely in ascertaining whether a right is consistent with enumerated rights, and what falls outside the scope of judicial power to assert?


Privacy 

4) In the context of privacy decisions under the 4th Amendment, under what conditions do you interpret the Supreme Court as calling for a "reasonable suspicion" as opposed to a "probable cause" threshold for a search, and how according to cases such as Pottawatomie v. Earls, would you identify what exactly would be grounds for "reasonable suspicion"? 

5) It is not uncommon for the interest of privacy and liberty more generally to be weighed against the interest of public safety and national security. How do you view these competing interests, and how do you interpret the Supreme Court precedent as balancing these when they're in tension? What evidence of a security threat do you see as sufficient to justify intrusions on individual liberty, and to what sources would you turn to identify this? 
 
6) You dissented in National Federation of Federal Employees v. Vilsack, a case on whether the Fourth Amendment permitted random drug testing for Forest Service Job Corps Center employees, and whether the non-law-enforcement public-safety interest in a drug-free environment outweighed the interest in guarding against privacy invasions of a random drug test. The majority found that the program was impermissible under the Fourth Amendment because there hadn’t been evidence of drug problems among the staff, suggesting that it was “a solution in search of a problem,” and that the program was overly broad in its application. I have two questions about your view on this case:
a) In your dissent, you viewed the drug testing program as being clearly reasonable and constitutionally permissible, holding that it “would seem negligent not to test” employees for drugs given the history of drug use among the at-risk students participating in the program. How do you assess a compelling state interest in combatting drug use when there is no evidence that this is a problem among the staff? When you consider compelling state interest, is it based on evidence of an existing problem, or is a more theoretical issue that the government has an interest in avoiding enabling?
b) You also viewed the drug test as being nonintrusive since it was only the provision of a urine sample. Are there more invasive oversight measures (such as blood tests or the submission of medical histories) that you would not have viewed as permissible even in light of the government’s interest in a drug-free environment?

7) In Klayman v. Obama, you decided on the National Security Agency’s Section 215 call-records program, which in your concurrence you found to be “entirely consistent with the Fourth Amendment.” How do you view this opinion now in light of the June 2018 decision of Carpenter v. United States?


Religion
 
8) You have been critical of Thomas Jefferson’s arguments about a strict wall of separation between church and state. How high do you view the proper separation of church and state, and how do you understand the Supreme Court precedents and history as shaping determinations as to what is a breach of this separation?
 
9) In the context of the Establishment Clause and the Lemon Test from Lemon v. Kurtzman (1971), the Court has held that laws are in violation of the Establishment Clause unless they 1) have a primary secular purpose, 2) have a primary secular effect, and 3) do not cause undue government entanglement in religion. You have said that application of the Lemon Test “can sometimes be counterproductive or even harmful.” Please discuss what your specific concerns are about it, and what your preferred approach to Establishment Clause cases would be.

10) Setting aside your view of the merits of keeping in place the Lemon Test and focusing instead on your understanding of its proper application, how do you understand the Court as having defined "undue government" entanglement in religious beliefs? To what sources do you believe it is legitimate to look in order to ascertain the secular vs. non-secular purpose of a policy? Do you look to facial neutrality, do you look at sources beyond the text, etc? How much evidence of someone’s personal history and comments do you feel would satisfy the qualification of being religiously-motivated?
* This is especially important in light of Justice Roberts's opinion in Trump v. Hawaii, which held that a facially neutral executive order could be treated as not constituting a non-secular purpose in large part because the religiously-motivated statements were from sources such as tweets, campaign statements, rallies, etc., as opposed to official government documents. So, if there is a policy with several statements indicating an underlying motivation of bias, should such statements enter into consideration by the Court, or should a more textual reading be applied?

11) You served as co-chairman of the Federalist Society’s “School Choice Practice Group,” and you worked on school choice litigation in Florida. One of the concerns about vouchers is that while promoting flexibility in allowing children to have more education options, they allow tax dollars to go to schools that may be non-secular, with the vouchers more likely to be used for religious schooling, which is less expensive. While the Supreme Court upheld their constitutionality in Zelman v. Simmons-Harris (2002), it was a contentious 5-4 decision and this remains a highly salient issue. Can you please discuss the evidence that you saw for their legitimacy taking into account both the state’s compelling interest in education quality, as well as the empirical fact that the vast majority participating in these program choose religious schools. When you look at data such as the differences in tuition for secular and non-secular schools and the rates of using vouchers for secular and non-secular schools, how do you evaluate the extent to which there is a true private choice?
 
Race

12) A number of Supreme Court decisions have upheld the constitutionality of affirmative action, conditional upon those policies not being administered through the use of quotas, but rather as part of a broader acknowledgement that race is one of many factors contributing to education diversity, and for which there is a compelling state interest (Grutter v. Bollinger, Fisher v. UT Austin). How should the Supreme Court balance affirmative action precedents that have been reaffirmed, against the (elected) executive branch rescission of affirmative action guidance? 
 
13) You predicted decades ago that the Supreme Court would embrace a color-blind view of the constitution, an approach that would undue much settled precedent regarding the consideration of race in admissions. You have also said, “This case is one more step along the way in what I see as an inevitable conclusion within the next 10 to 20 years when the court says we are all one race in the eyes of the government.” Please elaborate on your remark about enforcing a color-blind constitution, and to what extent (if at all) you consider the extent to which racial diversity would likely decline in the event of these programs’ termination.  

14) In 2013 in Shelby County v. Holder, the Supreme Court controversially struck down a portion of the Voting Rights Act that required preclearance. In the immediate aftermath of the holding, several states enacted restrictions on voting laws, such as onerous voter ID requirements and limits on early voting. In his majority Chief Justice Roberts cited the limited evidence of ongoing intrusions into voting rights in the affected parts of the country, though in her dissent, Justice Ginsburg compared the decision to throwing away one's umbrella in a rainstorm because one is getting wet. One tension that we have in this country is a recognition of certain fundamental rights on which the government can only in very rare cases infringe, as well as a system of federalism according to which states often have some measure of autonomy in implementation. How would you evaluate whether legislation that imposes requirements on states is still required to be in full effect in order to safeguard rights, especially fundamental rights such as voting?

15) You wrote an opinion that upheld South Carolina's strict voter ID law. You argued in your holding that the South Carolina law did not have a "discriminatory and retrogressive effect," and that the purpose was not discriminatory. You additionally cited a precedent that legislators' knowledge of the law's potential disproportionate impact does not alone equate to a discriminatory purpose. How, in your view, are judges meant to interpret whether a law is impermissibly aimed at discrimination, and from what sources do you feel it appropriate to render such an assessment? And to follow up, to what extent do you view this application of precedent deciphering in this case the motive behind voter ID laws extend to issues of disparate impact more broadly?

16) While there has been ample controversy concerning potential racial bias in redistricting and gerrymandering, in a recent case before the Supreme Court (Abbott v. Perez) it was assessed that the district lines may have been drawn out of political bias, which in some parts of the country overlap considerably with racial demographics. Given that we treat racial discrimination with strict scrutiny, how do you view the Court precedent as informing how you would disentangle politically-motivated from racially-motivated drawing of district lines?

Separation of Powers

17) You have been highly critical of the decision Chevron v. NRDC and the Court's declaration that there should be deference to agency interpretations of their authority unless Congress had been clear about its intention. What would be a more reasonable approach to administrative law doctrine? How would one balance the Supreme Court precedent and the agency's policy expertise against concerns about the scope of government intervention?

18) Your rulings on congressional deference to agencies have been inconsistent. In the context of congressional deference to the Environmental Protection Agency, you are critical of broad agency interpretations of their prerogatives. However, in PHH Corporation et al v. Consumer Financial Protection Bureau  (2016), you characterized congressional creation of independent executive agencies as a "headless fourth branch of government," and held that the CFPB's leadership structure was unconstitutional. Under what conditions do you view it as appropriate and constitutionally permissible for Congress to create such agencies, and what do you view as the proper role of courts in checking the reach of this executive branch authority?

19) You said of the unanimous decision United States v. Nixon (1974), which compelled President Nixon to comply with the subpoena and to produce the tapes and documents pertaining to Watergate, “Maybe Nixon was wrongly decided – heresy though it is to say so. Maybe the tension of the time led to an erroneous decision.” You also said of United States v. Nixon, “Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official.” Please elaborate on what you view as erroneous about this decision, and what you view as a more appropriate remedy than the one given. In times of executive branch corruption and an effort to promote transparency and accountability, what do you view as the proper role of the Supreme Court, if any, in guarding against excessive invocation of executive privilege? What do you believe that history, precedent, and practicality suggest should be the threshold requirements for claiming executive privilege?
 
20) In 2016, you said you wanted to “put the final nail” in the 1988 Supreme Court ruling of Morrison v. Olson, which by a vote of 7-1 upheld the constitutionality of provisions that created an independent counsel under the Ethics in Government Act. You additionally said, “It makes no sense at all to have an independent counsel looking at the conduct of the president.” While the law expired in 1999, being replaced by a Justice Department regulation that governs special counsels, views on the legitimacy of independent counsels and special counsels are of obvious concern right now. Please elaborate on your rationale for opposing this holding, to what extent you view Justice Scalia’s dissenting opinion as being the proper approach to adopt, and the conditions under which you view certain types of investigations of the executive branch as legitimate or inappropriate. If you view this authority as residing solely in Congress, do you view congressional inaction (potentially a result of unified government) as effectively leaving no oversight capacity over the president until the next presidential election?
 
21) Regarding the possibility of indicting a sitting president, you said, “Having seen first-hand how complex and difficult that job is, I believe it is vital that the President be able to focus on his never-ending tasks with as few distractions as possible. The country wants the President to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.” What do you view – and what do you believe that prior cases justify – as being the proper way to balance ensuring that there is rule of law and transparency amid potential issues of corruption, and promoting efficiency in the executive branch? Are there executive branch behaviors or allegations to which you would not apply that broad view of promoting flexibility and efficiency for the president, and if so, what are they?

22) The notion that there would be limits on the ability for an independent counsel, or in this case a special counsel, to investigate the President of the United States, while instead relying on the political process for impeachment, seems to be problematic in that it is difficult to obtain evidence of wrongdoing to the point of impeachment absent an investigation. How do you reconcile your reluctance to support investigatory processes into the president's conduct and a reliance on Congress, which might be looking to findings otherwise identified through that investigatory process?

23) Several political questions are currently arising that have so far been untested in the Supreme Court, particularly with respect to Article II powers. To what sources do you consult in evaluating new issues for which there is not Supreme Court precedent or is little precedent? Some of President Trump's defenders have pointed to Article II not laying out particular limits on the pardon power, and have cited this as evidence that it is unlimited, though the Constitution does not explicate limits on many rights that the Court has addressed and on which the Court has imposed bounds. In the case of issues such as the pardon power (in which specific limits are not laid out but for which immense rule of law implications can arise), to what extent do you feel that it falls within the Supreme Court's duty to interpret limits on the scope of the presidential power given broad Article II language, versus letting the issue be resolved by the democratically-elected Congress?

24) With United States v. Lopez and United States v. Morrison, the Supreme Court signaled considerable narrowing of its interpretation of the reach of Congress's power to regulate interstate commerce, instead calling upon Congress to provide greater evidence to support its claim of aggregate impact on the interstate economy. With Gonzales v. Raich, the Supreme Court broadened its interpretation, viewing the Controlled Substances Act as being within Congress's power to regulate, though in National Federation of Independent Business v. Sebelius, Chief Justice Roberts signaled another limit on what the Court viewed as a proper use of Congress's enumerated Commerce Clause authority. What do you feel is the proper test for what falls under Commerce Clause authority -- looking to whether there must be a direct impact on the interstate economy, whether the effect can be indirect, whether it has an aggregate effect on the interstate economy, whether the activity itself must be economic -- and when multiple rules have been adopted by the Court over the years (even in recent years), how would you adjudicate among them to decipher the proper scope of Congress's Article I power?

25) In United States Telecom Association v. Federal Communications Commission, you wrote a dissent in which you held that the net neutrality rule was "one of the most consequential regulations ever issued," but you ultimately claimed that it was "unlawful and must be vacated" because Congress had not explicitly authorized the FCC this rule, despite the ample record of legislative debate about the subject of net neutrality, and because restricting internet service providers' actions intruded on their editorial discretion, which you viewed as in conflict with the First Amendment. How substantial a legislative record do you view as necessary to demonstrate a legislative intent in delegating to administrative agencies, and can you please discuss where you viewed the majority on your panel as having gotten things wrong? Moreover, how do you view it as your role as a judge to balance speech rights of consumers versus the speech rights of internet providers?

Judicial Decisionmaking (general)

26) Please walk through a couple of judicial decisions that you have written in which the law led you to reach a decision that was in conflict with your personal/political beliefs, and how you reconciled that. 

27) According to what criteria would you view a precedent as having been wrongly decided? How do you weigh factors such as the extent to which it has been reaffirmed, new evidence of the impact of the holding, how popular the holding is, how recent the holding was, etc?

28) Textualists tend to seek to restrict analysis to the text, giving full meaning to the words of the text, unless doing so would produce an absurd outcome. How would you define an absurd outcome, and how would you reach that conclusion?

29) One of the consequences of lifetime appointments with longer life spans is that people are on the Supreme Court for several decades, and can in some cases be quite out of step politically with public preferences (for example, approximately 2/3 of Americans favor the upholding of Roe). To what extent, if at all, do you feel it appropriate for Supreme Court justices to consider public preferences in their judicial decisionmaking?

​Since the horrific and tragic events in Charlottesville, I have been torn between two thoughts. First, I try to give credit where it is due, and a number of Republicans have joined Democrats in condemning the white supremacy on full display at the rally (seriously, isn’t condemning Nazis the easiest part of the job?). But second, I find myself frustrated that those seeking solace in condemning Nazis (a condemnation apparently not of interest to President Trump…) so happily have empowered those who further entrench racism, misogyny, homophobia, anti-Semitism, and xenophobia.

I don’t know that Republicans are necessarily racist. But when they empower racists as a means to achieve their precious tax cuts, they look an awful lot like racists.

Consider President Trump, who as a candidate was endorsed by former KKK leader David Duke and the modern KKK, and notably showed reluctance in disavowing David Duke while showing no such restraint in attacking the media or celebrities who criticized him. It is striking that our president has stronger words for Meryl Streep than for ex-Klansmen. Trump’s perpetuation of the deeply racist birther conspiracy theory ought to have itself been disqualifying, yet the party nevertheless heard him out on other issues salient to the party. Watching Trump question the impartiality of a judge on the basis of his ethnicity, Republicans failed to distance themselves from him as their party’s nominee. Sure, they may have issued a gratuitous tweet or press statement, but they didn’t withdraw their support. They did not raise the question of, “Does the man who David Duke thinks speak for him, also speak for me and for my party?” Or if they did, they didn’t answer with an affirmative “no.” And then they voted to defend the man who they held committed the textbook definition of racism.

Indeed, any condemnation of racism rings hollow when it doesn’t not confront fully the fact that our president ran his campaign claiming that Mexicans were rapists, alleging that immigrants were bringing crime, and seeking to impose a ban on Muslims’ entrance into the United States. Will Trump disavow unabashed xenophobes? Surely no. He is one himself. Will the Republicans in Congress disavow unabashed xenophobes? Surely not. Most of them voted for one for president, and in most cases they’re enabling his agenda.

Or how about President Trump’s embrace of Steve Bannon, whose ties to white supremacy, if not direct embrace of white supremacy, should have been an immediate red flag if not deal-breaker for Republicans throughout Congress. While President Trump’s Republican support pales in comparison to that of his predecessors, a number of his co-partisans recognize that working with this administration will be necessary to achieve common goals of tax reform to aid the wealthy and the decimation of health care (also to aid the wealthy). Toward this end, the Republicans have consistently overlooked the inconvenient truths of the Administration’s entrenchment in white nationalism.

Consider the vote for Jeff Sessions for Attorney General. The best way I can summarize the Sessions confirmation is, “Jeff Sessions: Too racist for 1986, but just racist enough for 2017.” This is a man whose history of racism is well-documented and precluded his successful confirmation as a judge in the 1980s – and who in recent years not only criticized consent decrees, but characterized the Voting Rights Act as “intrusive,” praising the Supreme Court’s deplorable gutting of the VRA in Shelby County v. Holder. Indeed, Sessions had at one point jested that he thought the KKK were okay until he learned of their use of marijuana, and former colleagues had testified that he had used the n-word. And at a time of well-documented police brutality against people of color, this is an especially dangerous person to head the Department of Justice, for whom “justice” will apparently no longer be the operative word. Yet not a single Republican voted against him to be the nation’s top law enforcement officer.

It should come as little surprise that Republicans have hardly been on the front lines condemning Attorney General Sessions’s subsequent expansion of support for the private prison industry, with those incarcerated disproportionately minorities (and in many states, likely to have their voting rights stripped away, thus leaving them devoid of political remedies to fight back against such policies in subsequent elections).

Now let’s turn to the vote for Ben Carson, whose qualification for the position of Secretary of Housing and Urban Development could only be on the basis of his understanding “inner cities,” which appears to be President Trump’s euphemism for majority minority communities. Characterizing civil rights protections as “extra rights,” there was little doubt that Secretary Carson would fail to vigorously enforce civil rights in public housing, thus opening the door toward further discrimination on the basis of race, color, national origin, or sexual orientation or identity. Consistent with expectations, as HUD Secretary, Carson “reinterpreted” an Obama-era housing rule that had aimed to combat housing discrimination by reducing segregation. There was not a single Republican who voted against his confirmation.

Consider the administration’s new war on affirmative action programs, which help to increase education opportunity for those from historically disadvantaged groups, but which some conservatives characterize as “reverse discrimination.” With education opportunity helping to increase economic opportunity, increasing access to quality, affordable education is imperative, and increasing diversity is a broad goal that the Supreme Court has affirmed in Grutter v. Bollinger (2003) and again in Fisher v. University of Texas (2016), conditional upon those affirmative action programs consisting of a holistic admissions review and thus narrowly tailored as opposed to a more sweeping quota system as under Bakke. Needless to say, the incompetence of the current administration doesn’t leave one with the sense that the takeaway of 2017 is that white people are disadvantaged and plagued with “economic anxiety.” At a time when we are already seeing a re-segregation of American schools, such a stand against increasing diversity would roll back decades of progress in education and economic opportunity. And this condemnation of affirmative action has been a long-standing conservative talking point.

Or we can address the government’s commitment to Medicaid allocations, which deliver health care to the most vulnerable segments of American society, and with 1 in 5 Americans on Medicaid or CHIP. With considerable persisting health inequality, including along racial lines, delivering health coverage to the vulnerable is imperative in helping people to be productive in the workforce, and in turn boosting economic opportunity across racial lines. Studies have found that minorities would be deeply harmed by cuts to the government’s Medicaid allocations. And yet Republicans’ failure to repeal the Affordable Care Act was in no small part due to the proposed legislation not cutting health care enough.

And for everyone’s dream palate cleanser after that, there’s Stephen Miller, over whom rumors have circulated regarding a potential promotion into a communications position after his castigation of the ideals embraced by the Statute of Liberty and “The New Colossus.” But hey, we’re all probably just being too cosmopolitan in rejecting the notion that America has been, and should continue to a nation for whom diversity is an asset, not a liability, and shouldn’t be erased away through white supremacist groups seemingly be in bed with the presidential administration.

Or how about the voter ID legislation that is sweeping the nation in the aftermath of Shelby County v. Holder. Studies have shown that non-white Americans are less likely than white Americans to possess government-issued ID, and thus that such laws would have a disproportionate impact in suppressing minority voters. And yet Republicans have time and again been the party sponsoring for political gain these restrictive voting laws, many of which previously had been blocked due to preclearance requirements but which the Supreme Court has now given the green light. While state secretaries of state of both parties have challenged the massive amount of voter information solicited by the voter fraud commission led by Kris Kobach, too often Republicans have enabled if not encouraged restrictive voting legislation in the name of guarding against fraud (which incidentally doesn’t exist in any significant level) but with the ultimate effect of reinstating Jim Crow by another name.

And let's not forget the Republicans' acceptance as a colleague Congressman Steve King (IA-4), a man who keeps on his taxpayer-funded desk a Confederate flag and has more than his fair share of race-related controversies.

Even as Senator Flake rightly criticized his party for not ardently opposing the birther conspiracy, he and 50 of his fellow Republicans confirmed for a federal judgeship John Bush, who not only has been outspokenly misogynistic and homophobic, but actively spread the birther conspiracy. There are principled and qualified conservatives with whom John Bush could reasonably have been replaced as a nominee, but the Republican Party lined up in his defense, feigning offense at racism only afterward.

Opposing one’s own party is hardly an easy task, and I recognize that. But there are some moral imperatives, and standing for basic equality is one of them.

People don’t deserve points for grimacing while voting for, and continuing to empower, bigots. They deserve points for speaking out against them and then acting on that conviction. It’s like what we all learn as young children: actions speak louder than words.

Writing press statements and tweets condemning Nazis is easy. Walking away from a set of policies systematically disenfranchising and otherwise disadvantaging minorities is harder. But the Republicans need to do it if they want to be taken seriously in condemning white supremacy.

President Bannon wants to tear it all down and deconstruct the administrative state. Neil Gorsuch may be the man for the job.
 
Indeed, in his concurring opinion in Gutierrez-Brizuela v. Lynch (2016), Judge Gorsuch wrote, “We managed to live with the administrative state before Chevron. We could do it again.”
 
To be sure, at a basic level, Judge Gorsuch is not incorrect. America’s modern administrative state could reasonably be characterized to have emerged in 1887 with the Interstate Commerce Act, 97 years prior to the Chevron holding. Policy implementation by way of rulemaking would not cease in the event of its reversal.
 
Yet the aversion to Chevron deference to agency expertise is emblematic of a broader view about regulatory capacity and the proper role of the federal government versus states and private enterprise. Indeed, in that same opinion he held that Chevron and Brand X “permit executive bureaucracies to swallow huge amounts of federal power” in excess of that envisioned by the framers. 
 
Judge Gorsuch’s mother, Anne Gorsuch, is notable for a deregulatory stance while serving as Administrator of the Environmental Protection Agency from 1981 to 1983, and Judge Gorsuch seems to share her view about the proper role of executive branch agencies as vehicles of policy change. Indeed, the notion of having an agenda characterized by “regulatory relief” is far from unusual in a Republican administration.
 
What is less usual is President Trump’s Executive Order calling for the rescission of two rules for every new rule promulgated. Such a move could reasonably be characterized as working toward Bannon’s stated goal of “deconstructing the administrative state.” Setting aside the logistical challenges that would emerge in the implementation of the EO – namely, that some rulemaking is mandatory not discretionary, and that notice and comment processes apply to rule rescission as well – it reflects a hostility to a regulatory state across a range of policy domains.   
 
The proper scope of the regulatory state is not crystal clear, though many would hold that complexities of contemporary politics and policymaking require a significant measure of deference to agency interpretations of regulatory authority. Members of Congress, whether junior or senior, are not experts in the safe levels of benzene in water. They are not experts in the the design features ensuring safety of particular classes of vehicles. They are not experts in ergonomic design for diverse ranges of workplaces.
 
Agencies, on the other hand, are comprised of experts and have the technical knowledge as well as the resources to render such reasoned judgments, and are able to draw also on an extensive body of information gleaned through the notice and comment process. And while this presents reasonable questions of democratic theory – that is, members of Congress are directly accountable to the voters, whereas bureaucrats are not – it presents practical, efficiency advantages. By all accounts, drawing on this scientific and otherwise technical expertise is imperative. In its absence, Congress is left to construct these technical details absent the adequate training and resources to do so.
 
Judge Gorsuch’s confirmation hearing was – true to form with respect to any Supreme Court nomination proceeding – characterized by a vigilant defense of stare decisis, or respect for judicial precedent. That is, he articulated a commitment to upholding existing case law, to enforcing laws passed by Congress and respecting prior decisions rendered by the Court. Such a view is commonly articulated in nomination hearings, and will (if true) give comfort both to liberals concerned about the endurance of Roe v. Wade and to conservatives concerned about judicial activism.
 
This makes Gorsuch’s stated views on Chevron all the more interesting, given its status as a widely-cited and heavily influential administrative law precedent from 1984. Indeed, it is the third most-cited administrative law case. While publicly characterizing such holdings as Roe and Obergefell as being “the law of the land,” he openly criticized in Gutierrez the view of the regulatory state embraced by Chevron deference to agency interpretations of the laws that Congress passes.
 
It is unclear that Congress will indeed succeed with its legislation to reshape the deference afforded. Yet there is a striking inconsistency on the part of Judge Gorsuch, accepting on principle one precedent as the law of the land while stating we could (perhaps should) do without another precedent. Thus, it is distinct from mere disagreement from the holding, in that he advocated in his concurrence a world without Chevron.
 
And while Judge Gorsuch was not actually advocating in his hearing for its overturning, and indeed acknowledged the value of scientific expertise, if we rely on his written words as he called upon the committee to do, there is ample reason for concern about the scope of the regulatory state under the Trump Administration and beyond if and when Judge Gorsuch is confirmed to the Supreme Court. Scaling back on the Court’s reliance on Chevron may prove to have only a modest impact, though it has the capacity to impact the multitude of cases that rely on it, with potentially drastic impact on environmental regulation. Indeed, the EO and Judge Gorsuch could potentially be the perfect convergence of circumstances for the Trump Administration in its effort to deconstruct the administrative state.
 
Judge Gorsuch at his hearing set up a false dichotomy between being thoughtful versus being political, the latter of which Gorsuch decried given his status as a federal judge. Ultimately, a reality of being in the government – even in the judicial branch – is that politics and policy are often (some might say too often) intertwined. This is ever truer at this time when President Trump’s policies defy historical precedent with respect to both domestic and foreign policy. Whether he likes it or not, the implications of Judge Gorsuch’s views about Chevron and its proper ongoing role in American administrative law are important to our law, politics, and policy.
 
America’s greatness is not achieved by looking “backward, not forward.”
 

​Mr. Trump is not the first president to have a so-called “enemies list,” though the first such presidency did not end well.

Mr. Trump’s enemies list is long. Mexicans. Muslims. Vanity Fair. The New York Times. The Washington Post. Polls (when unfavorable). Fact-checkers. Democrats. The media broadly construed. Judge Curiel. John Lewis. Meryl Streep. Saturday Night Live. Those requesting his tax returns (not just journalists?).

He has now added an entire branch of government, this branch of course being the judicial branch.

If you think that this is not dangerous, guess again.

The judicial branch was famously characterized by Alexander Hamilton in Federalist 78 as the “least dangerous” branch, controlling neither the sword nor the purse, having “neither force nor will; only judgment.” While scholars have debated the extent influence of the judiciary in the separation-of-powers system — whether calling attention to the courts as vehicles for protection of rights, or calling attention to Title VI of the Civil Rights Act of 1964 as being a stronger impetus for desegregation of the American South than was Brown v. Board of Education — it is undeniable that the Supreme Court has served a crucial role in the enforcement of constitutional rights over the decades.

This is enabled in no small part by the fact that the American political system provides for judicial independence — with lifetime appointments and the inability to be removed based on its decisionmaking — thus enabling justices to avoid political pressures that might influence their rulings. It is also enabled by our institutional norm of judicial legitimacy, according to which the branches respect the right of the judicial branch to render the decisions that it does, with respect for the decisionmaking process if not the substance of the outcomes themselves.

To be sure, presidents have spoken out about their views as to the substance of decisions, with President Obama saying publicly that he disagreed with the outcome of Citizens United. But he did not attack the Court or the justices who sit on it. He attacked the particular outcome.
Enter Donald Trump.

The relationship between the Trump Administration and the judiciary has already been one marked by tension, with Kellyanne Conway initially holding that the district court restraining order “really doesn’t affect” the Trump Administration’s implementation of the notorious executive order of prohibiting travel from seven predominantly Muslim nations. While we do not always agree with the outcome of judicial rulings, the rule of law necessitates compliance with them, and appeals procedures are in place in order to challenge adverse actions. This does not, however, obviate the need to comply in the meantime, a norm that initially was not followed.

Following Judge Robart’s determination that there should be a nationwide restraining order with respect to this EO, Mr. Trump in true Trump fashion lashed out on Twitter at the “so-called judge.” While party affiliation would have no bearing on Robart’s legitimacy as a judge, it is worth noting that he was a George W. Bush appointee who was confirmed unanimously. He soon thereafter held (again via Twitter) that in the event of a national security problem, the American people should blame Judge Robart and the court system. Thus, we saw for the first time in modern American history, the President of the United States attacking the judiciary’s legitimacy and scapegoating it in the event of a hypothetical attack, likely setting it up to restrict its independence under conditions of such heightened national security risk. Absent such judicial independence, judges are not free of political pressures in their decisionmaking and thus may operate as inadequate checks on the other branches and intrusions of rights.

So, rather than accepting the outcome and following the appeals process, he filed the appeal and engaged in a Twitter tirade the compromised the very legitimacy of the branch of government dedicated to the safeguarding of rights that are left in question by the EO and its implementation’s depriving of due process and equal protection under the law. He went on to question what our country is coming to when a judge is able to halt a Homeland Security ban. He further has tweeted insidiously that we are at risk for terror attacks — an effort that like his constant falsehoods about crime rates is with the aim of instilling fear and thus willingness to forego some civil liberties — and thus that courts must act fast.

This shows a fundamental lack of understanding of, and appreciation for, the important role that courts play in our political process. The business of courts is not to act quickly, but rather to be a slower-moving political authority that is not acting out of political expediency, but rather in defense of the constitutional principles that are dangerously under attack currently between the EO and Mr. Trump’s frequent attacks on the media.

When appealing Judge Robart’s order, the Trump Administration further went on to hold, “A reviewing court would not be well-equipped to ascertain the quantum of risk, or what is a reasonable margin of error in assessing risk… Judicial second-guessing of the President’s national security determination in itself imposes substantial harm on the federal government and the nation at large.”

Liberty and security could conceivably be in tension with one another at times, which is why times of national security crisis typically coincide with stronger presidential powers and some degree of constraint on liberties (e.g., the Patriot Act). The Supreme Court’s role is largely the guardian of liberty and it is worth emphasizing also that the ban is not targeting countries from which Americans have suffered particularly, thus raising important questions as to any validity of a national security exception to the claims that his administration makes.

What is perhaps most striking about the Administration’s statement is the notion that judicial second-guessing of the president’s national security determinations is harmful.

“Judicial second-guessing” of the other branches is the job description of judges and justices, and has been since Justice John Marshall famously declared in 1803 in Marbury v. Madison that “it is emphatically the province and the duty of the judicial department to say what the law is.” Indeed, this check on presidential (and legislative) powers is an essential protection of the separation of powers, guarding citizens’ rights against government encroachments of which the Framers were concerned.

Perhaps before Mr. Trump seeks to “make America great again,” he should make Marbury great again.

Those defending Mr. Trump have similarly mischaracterized the critical role that the judicial branch serves in American politics. Mike Huckabee said on Fox that the executive branch historically “has emasculated itself by surrendering constantly to the idea that once the court says something, that’s it. It’s the law of the land… The court can’t make law. They cannot legislate.”

While it is true that legislation is pursued through Congress, the elected branch, and it is true that the judiciary relies on the other branches for the implementation of its decisions, judicial holdings create binding precedent, laws contrary to the Constitution are deemed invalid, and the American political system has a norm of compliance with such holdings, lest we compromise the very fabric of the rule of law governing our society.

There have been all too many moments of the Trump transition and early days of the presidency in which Mr. Trump and his advisors showed a frightening lack of understanding of the role of the president (a fact to which even John Yoo recently called attention) and the powers of administrative agencies in the separation of powers system. While one might find reasons to characterize their statements about the judiciary as being reflections of ignorance, it appears instead to be more deeply pernicious than that. (It is all the more egregious to millions that the man who is this ignorant about, and hostile to, the courts has been given the capacity to fill the seat left vacant by the passing of Justice Scalia, and kept vacant amid the Senate Republicans’ refusal to so much as grant Judge Merrick Garland a hearing.)

Never before has American government seen such a nefarious hostility to the institutions protecting these rights. While President Roosevelt provides a salient example of executive-judicial conflict, it is worth noting that President Roosevelt sought to expand protections of rights amid the New Deal, whereas the Court at that time was striking such protections invalid. As things stand currently, with undemocratic moves being made throughout the executive branch — whether the dissemination of falsehoods, the attacks on the media, the marked corruption, lack of transparency, and imposition of likely unconstitutional executive orders — and an all-too-obsequious and enabling legislative branch of the same party control, the courts stand currently as the sole buffer against further intrusion into fundamental democratic principles.

​It is not hard to imagine why the Trump Administration would be so hostile to them. It is also not difficult to see why it is so dangerous.
​
It is up to us as citizens to be all the more vigilant to guard these ever-more-fragile rights before they are long gone.

​In the aftermath of Mr. Trump’s upset on November 8, there was speculation as to whether the more extreme elements of his campaign positioning was rhetorical flair to appeal to the more extreme segments of the electorate, as opposed to genuine policy preferences. With the hiring of white supremacist and anti-Semite Steve Bannon as senior advisor and the nomination of Jefferson (“Jeff”) Beauregard Sessions for Attorney General, we got the answer loud and clear (and spoiler: many aren’t happy with that answer).
 
The Attorney General, the head of the Department of Justice, is a position whose importance cannot be overstated, adjudicating matters ranging from the criminal justice system to immigration to civil rights and voting rights. The position filling this position must be sympathetic to such matters of justice and equality. After all, the operative word in “Department of Justice” is, you know, justice.
 
For this role, Mr. Trump has nominated Senator Jeff Sessions, a man whose hostility to civil rights and voting rights cannot be overstated.
 
In the aftermath of the Supreme Court decision of Shelby County v. Holder (2013), states whose preclearance requirements with respect to the Voting Rights Act capitalized on the relaxation of voting rights regulations by passing new restrictive legislation on such issues as voter ID and the number of polling places, issues that disproportionately impact minorities and the poor.
 
2016 was the first presidential election that the United States had since the enactment of these new voting constraints, and we saw the egregious impact, with 868 fewer polling places than in previous elections. For example, North Carolina, Texas, Wisconsin, and others enacted new voting restrictions by way of stricter voter ID law. The largest county in Arizona, Maricopa County, reduced the number of polling places by 70% between 2012 and 2016, from just 200 to 60.  The Leadership Council on Civil Rights studied the 381 counties affected by Shelby for which data were available in 2012 or 2014, and found that 43% of them had reduced the number of voting locations.
 
Indeed, the number of polling place closures fits quite clearly along the lines of the states affected by the holding, with 212 closures in Arizona, 403 closures in Texas, 103 closures in Louisiana, 44 closures in Mississippi, 66 closures in Alabama, 12 closures in South Carolina, and 27 closures in North Carolina. Such closures have the result of producing inordinately long lines in order to vote, with some states providing only two hours of time away from work to vote, and some states not having any such law in place. Even if able to take time away from work (and in many cases the lines vastly exceeded two hours), there are significant opportunity costs to lost time away from work, potentially billable hours.
 
Amid what will soon be a very conservative Supreme Court, and a challenging terrain in which to defend voting rights for all Americans, we deserve – indeed, we require –  an Attorney General who is on the side of voters. Which brings us to Jeff Sessions, whose controversial stances on civil rights include a defense of the KKK but for their use of marijuana (because that’s the real problem with them?), who characterized the NAACP and the ACLU as “Communist-inspired” and “un-American,” and who allegedly told an African American staffer that he should be careful what he said to white people. Indeed, in 1986 his past of racial discrimination disqualified him from the post of being a federal judge, and those who defend civil rights are now left praying that the 115th Congress is not more racist than the 99th Congress was.
 
Within the realm of voting rights, Sessions has been equally antagonistic, characterizing the Voting Rights Act of 1965 as a “piece of intrusive legislation,” this comment about a law that outlawed the racially discriminatory practices that violated the Fifteenth Amendment of the Constitution of the United States. As a United States attorney in Alabama in the 1980s, he sought to prosecute an African American man for alleged voter fraud when registering African American voters (the fraud allegations were not substantiated and Sessions lost the case). Perhaps most surprising is that in the aftermath of Shelby County v. Holder (2013), Sessions denied that Shelby County, Alabama had ever had a history of voter discrimination (this coming from the state where many of the fiercest battles over voting rights were waged, as in Selma, and with civil rights activist and Congressman John Lewis staunchly challenging Sessions’ characterization).
 
The Voting Rights Act previously had stipulated that regions with histories of racial discrimination required prior authorization from the Department of Justice before enacting new voting legislation (ahem, restrictions). While this no longer applies, doubtless voting rights cases will continue to be waged in the DOJ and in courts. Needless to say, viewing Shelby County’s current state, not to mention its prior history, as not being discriminatory toward minorities, it is not difficult to see the damage that he could easily do when tasked with adjudicating which voting restrictions are acceptable given the Voting Rights Act’s provisions (to the extent that they remain intact).   
 
Congressional crafting of law almost always provides for some executive branch enforcement and/or rulemaking, but in some cases also provides a venue for litigants to themselves assert their rights. Indeed, Title VII of the Civil Rights Act of 1964, though originally a compromise with the Republican coalitions, ultimately proved to be a highly potent means through which to challenge discrimination based on race, sex, religion, or national origin. Thus, regardless of administrative decisionmaking, individuals were given a voice through courts.
 
The Voting Rights Act has no such provision for a private right of action. Rather, the power rests in the Attorney General himself or herself to institute proceedings to enforce the guarantees of the Fifteenth Amendment and the VRA’s other statutory provisions. Thus, absent a committed Attorney General, and with a conservative judiciary, progress within this domain can vanish with ease and without recourse by private parties.
 
Essential to democracy is the right of political participation. As over 62 million Americans are reminded, sometimes this yields bad results. However, it is the best system that we have, and preserving the franchise is fundamental to the democracy for which our nation is known (for now). Americans require an Attorney General committed to the Constitution and to enforcing basic rights, not undermining them. Jeff Sessions is not that person. It is incumbent upon the United States Senate to recognize that and to vote against him accordingly. 

​On November 8, Americans had an opportunity.
 
We had an opportunity to reject the cynicism and unbridled fear on which Mr. Trump’s campaign was based.
 
We had an opportunity to resoundingly declare that a man whose campaign is about building walls rather than bridges is un-American, and that banning individuals on the basis of their religious affiliation defies the basic principles for which we stand.
 
We had an opportunity to defeat the most dangerous demagogue to receive a major party nomination in modern United States history.
 
We had an opportunity to take a much-needed stand for the higher principles of justice, fairness, and equality, the fundamental tenets of the Constitution of the United States, and the very notion that America does better when we work to lift one another up from hardship and expand opportunity.
 
We had an opportunity to affirm that our self-worth is not determined by the color of our skin, our gender, to which god we pray, or who we love. 
​
We had an opportunity to provide an example for the women and young girls of our nation that with enough hard work and determination, they can be anything to which they set their minds, even President of the United States.
 
We had an opportunity to elect the most deeply and broadly qualified person to receive a major party nomination, and to affirm the seemingly basic principle that competence is an important dimension of governance.
 
We had an opportunity to move America forward on healthcare, climate change, reproductive rights, the economy, and the Supreme Court.
 
We squandered this opportunity, and in doing so, we failed ourselves.  
 
Shame on us. 

Among other oddities of the 2016 presidential election is that it will be the first presidential election following the invalidation of key aspects of the Voting Rights Act of 1965.
 
In Shelby County v. Holder (2013), the Supreme Court of the United States notably struck down the preclearance regime of the Voting Rights Act of 1965, holding that the coverage formula determining preclearance was no longer needed given contemporary progress. This section of the Voting Rights Act applied to those states with histories of discrimination, requiring that they obtain approval from the federal government before making changes to their election laws. The states to which it applied were Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia, along with parts of California, Florida, Michigan, New York, North Carolina, and South Dakota. This November will be the first presidential election in the aftermath of this controversial holding.
 
In the immediate aftermath of Shelby County v. Holder, many states took action on their state election laws. Indeed, shortly after the Court’s holding, having waited for the preclearance provision to be invalidated, the North Carolina state legislature passed legislation that imposed strict photo ID requirements, significantly cut back on early voting, and reduced the window for voter registration. Alabama likewise imposed a new strict photo ID requirement that would have required preclearance, and Mississippi moved to enforce its photo ID law which it had not been permitted to implement under the preclearance provisions of the VRA due at least in part to the difficulty of obtaining an acceptable form of ID. Moreover, the very day of the holding, Texas officials announced that they would implement the state’s strict photo ID law, a law that previously had not passed constitutional muster because of Section 5 of the VRA. While it would later be declared so strict as to be unconstitutional, many strict photo ID laws remain intact. Indeed, 34 states have laws requesting or requiring that voters show some form of identification at the polls, a requirement that disadvantages minorities and the poor.  
 
It should come as no surprise that the states to which preclearance applied were largely concentrated in the South given the prevalence of Jim Crow policies ultimately struck down by Congress and the courts. Such states traditionally have tended to be strongly Republican (e.g., Mississippi, Louisiana, South Carolina, Alabama), with strongly Republican (Democratic) states typically not the locus of massive campaigning compared with battleground states such as Florida, Ohio, and Pennsylvania.
 
There are, of course, some states to which Shelby applies that have consistently been relevant, namely Virginia and North Carolina. But this is not only the first election in which the Voting Rights Act protections will hold, but the first election in which more of these applicable states will be competitive. Indeed, with polls in Texas, Georgia, and Arizona all dramatically narrowed, the campaigns are converging on these three states that typically have not been considered in the toss-up (or even lean) category in decades.
 
Indeed, Georgia has not voted for a Democrat since 1992 (and very narrowly at that), with more recent presidential elections won in the state by wide margins. Texas has not voted for a Democrat since 1976. The only time since 1948 that Arizona has voted for a Democrat is 1996. In each of these states currently, Secretary Clinton could conceivably win, with Texas being the longest shot among the three and Georgia the most likely.
 
Even absent competitive elections, the last couple of decades have continued to show instances of voter intimidation and suppression of minority voters in southern states and beyond. People for the American Way documented, for example:
 

• Louisiana (2002): Flyers distributed in African American communities informing them that they could alternatively go to the polls on the following Tuesday.
• South Carolina (1998): A state representative mailed 3,000 brochures to people in African American communities, claiming that law enforcement agents would be “working” the election and indicated that the election “is not worth going to jail.”
• South Carolina (1996): Considerable voter intimidation in Charleston County.
• South Carolina (1990): Charleston County election officials sought to prevent African American voters from seeking voting assistance.
• Michigan (2004): State representative quoted as saying, “If we do not suppress the Detroit vote, we’re going to have a tough time in this election.”
• Texas (2004): Students at predominantly African American university were erroneously told that they were not eligible to vote in the county, despite legal precedent applying to their case.
• Florida (2000): Numerous instances of voter intimidation, especially in immigrant communities.
• North Carolina (2000): Allegations of voter intimidation at the polls.
• North Carolina (1998): GOP officials in some counties planned to videotape people in heavily Democratic precincts, saying that it was to prevent voter fraud, though it was considered in violation of the Voting Rights Act.
• North Carolina (1990): The North Carolina Republican Party sent postcards to 125,000 voters, 97% of whom were African American, giving them false information about voter eligibility and warning them about criminal penalties for voter fraud.
• Alabama (1994): Under the guise of investigating church arson, FBI approached 1000 people and interrogated voters about potential fraud and demanded that many submit handwriting samples.

 
This is a mere sampling.
 
To be clear, the preclearance provisions apply not to incidental incidents of intimidation, but rather the procedures according to which elections formally are conducted, though it indicates that, contrary to the Court’s claims, the Jim Crow South is far from dead.
 
This election is contentious for a number of reasons. The Democratic nominee is the first woman to run in a major party, and has high unfavorable. The Republican nominee has stoked racist, homophobic, anti-Semitic, xenophobic, sexist, and violent rhetoric contributing to such cries as “lock her up,” and signs with Swastikas and racist and sexist epithets. This, coupled with anxieties around crime and policing, as well as Second Amendment rights being discussed at length, is in many ways the perfect storm. That the Voting Rights Act protections of Sections 4 and 5 overturned in Shelby County will not hold is hardly the source of conflict this election cycle, but it is probably adding fuel to the fire.  
 
What is worth noting is that the various irregularities that were identified were not necessarily in regions with competitive races – indeed, most were not. The concern, of course, is that with heavy campaigning absent voting rights protections, we might feel the effects of Shelby County v. Holder all the more acutely than whatever treatment effect we might observe if her expansion of the voting base were in (more predominantly white) heartland states to which preclearance provisions did not apply.
 
While there is the normative desirability of voter participation, there is the reality that some states are not competitive, and with the Electoral College, there is not as much need to battle to win states such as Alabama and Mississippi (or on the other end of the spectrum, Massachusetts and Connecticut), which reliably vote for the same party every year. Secretary Clinton is showing a growing base of support in the South and southwest in such states as Georgia, Texas, and Arizona, regions that have the history of discrimination against which the Voting Rights Act had been working to guard. What remains to be seen is whether the increased need to fight for every vote in these southern and southwestern states yields changes to their voting rights landscape that have lasting adverse consequences for minorities’ political participation.