Lest it fall through the cracks amid attention so focused on the Dr. Christine Ford's letter, there were A LOT of strong reasons to vote against Brett Kavanaugh even before it emerged.  For starters, perjury is never a good quality in a Supreme Court Justice.  Or a Federal Judge, for that matter...

There's a question concerning all this that hasn't really been discussed must yet.  It's possible, of course, that the charges being made in the letter turn out to be false or unproven.  However, it's just as possible (and being totally subjective, I'll say it's probable, or even likely) that they're true.  If the former, then the nomination moves forward as before, and Mr. Kavanaugh will be voted on based on all the rush-through reasons the committee has allowed.  But -- IF belief in the charges or evidence of them progress to the degree that Kavanaugh withdraws or enough Senators believe the accusations and reject him, that raises the little-discussed question.  If Brett Kavanaugh is not approved for the Supreme Court because of having committed attempted rape over 30 years ago and lied about it today, doesn't that suggest he shouldn't be on the federal bench at all?   And that he should be impeached or resign?  

By the way, one of the Republican talking points through all this is to ask if one should be judged on the actions a person took over 30 years ago when in high school.  I would suggest that we're not talking about applying for a job at Burger King, but a lifetime appointment to the Supreme Court, when standards of employment are the highest -- and should be.  And attempted rape is most probably disqualifying from that job.  (Not to mentioned, as noted above, any lifetime job on the federal court.)  But far more to the point is that this is NOT just about what happened over 30 years ago...but today.  If Republicans want to talk about how a person grows from their past transgressions, and that we should look at them today, great!, let's look at Brett Kavanaugh today.  Because today, if the allegations are true, Brett Kavanaugh is a man denying vehemently that he he ever committed attempted rape, and assuming he's brought back before the Senate Judiciary Committee to investigate the matter, he's a man who -- today -- (unless he decides to confess) is willing to lie under oath about it.  That's who Brett Kavanaugh is today.

(Side note: I think it's proper for the press to report, as they have, that when Brett Kavanaugh has denied the charges, he "vehemently" denied them.  But I think it's proper, as well, that if the press does that, for them to make just as clear that Dr. Ford has "emphatically" affirmed her charges.)

I don't know for absolute certain what the truth is here.  I have my belief and reasons for it (among them, as I noted on Monday, it turns out that I have a distant overlap with someone who is longtime friends with Christine Ford.  They talk often, and he is absolutely sure she is telling the truth), and think that the action did happen.  But make no mistake, the issue at hand isn't only about three decades ago, but today.  And what should be done in full, beyond just the Supreme Court, should the charges turn out to be true.

There's been one particular oddity about the fight over Brett Kavanaugh's nomination for the Supreme Court.  It's surprised me a bit on its own merits, but also since I haven't heard it discussed in the media ever since the nomination was made.  (That doesn't mean it hasn't been, just that I haven't heard it...)

From the first, Republicans knew that this would be a deeply controversial fight.  Even Majority Leader Mitch McConnell told Trump he should nominate someone other than Kavanaugh.  When the Federalist Society gave Trump their list of five "approved" nominees (which is another matter all its own...), Kavanaugh was on it, but at the very bottom.  But that's who Trump nominated -- for the reason most people all presume, that Kavanaugh is seemingly against the legality of indicting a sitting president.  And so Republicans were stuck with this fight.

And not just a fight, but a bitter fight that made them look small and corrupt, hiding tens of thousands of pages of documents.  Defending a perjurer.  Defending someone whose position on abortion may cause massive problems for Republicans in upcoming state elections.  (Keep in mind that about 80% of women are against overturning Roe v. Wade.)  And perhaps cause problems even for the senators themselves.  Defending someone whose presence on the Supreme Court will always be a target for opponents and a reminder of these senators' egregious actions and which could be held against them when the tables are turned and Democrats are in control in the Senate and White House.  And all over a nominee who is at risk of being impeached for his perjury when Democrats are next in control.

And all for a "fight" that has little meaning for them.

Consider:

This nomination isn't like an election where, if you lose, then your opponent wins.  This is just a nomination.  And if for some reason Brett Kavanaugh is voted down (unlikely, I know, but it's always been possible), then it's not like Republicans lost the seat on the bench.  Trump will just nominate someone else -- and someone who is just as deeply conservative.  In fact, probably the first choice on the Federalist Society's list.

And that's the oddity.

Unlike most fights, this was a no-lose situation for the Republican Party.  Not for Trump precisely -- we can figure out one big reason he nominated Mr. Kavanaugh.  And while that's probably a matter of some concern to Republican Senators, it's far less so that for the potential indictee in the Oval Office.  The main thing Republican senators care about is having a very conservative justice sitting on the Supreme Court with a lifetime appointment.

If at the very beginning of this nomination process Republican leadership very quietly behind the scenes told Trump not just that they preferred a different candidate (which Mitch McConnell did do), but far more forcefully made abundantly clear that they would be releasing all of the requested documents as requires, and that leadership would give their members the opportunity to vote their conscience, that GOP senators didn't have to be lock-step with one another, and they wouldn't have their careers tied to a deeply-flawed, problematic nominee, one with an exceedingly-negative approval by the public, then it might have been so obvious from the very first that Brett Kavanaugh would have no chance of getting confirmed, and he might have withdrawn his name, or Trump might not have made the nomination in the first place. And if that happened, Republicans wouldn't have "lost" anything -- because it all would have been immediately followed by a new nominee just as conservative as Kavanaugh.  And one without all the "perjury-abortion-blocked documents" baggage, one who wouldn't burden the senators' own careers, one would wouldn't be at risk of being impeached and losing the seat -- and one who would sail through the nomination process and bring Trump and the GOP a semblance of acclaim for just a fine jurist.

But instead, Republicans chose to fight this battle.  Over a nominee who will forever color them and the party.  They chose, as they always have, to cave in to Trump, to their own almost-inexplicable detriment.  For pretty much no reason at all, because the next nominee would have been just as conservative, and perhaps even admired.  It was like putting all their chips on the table and going all-in for Harriet Miers or Alberto Gonzales -- or even Clement Haynsworth or G. Harrold Carswell, all of whom were considered for the Supreme Court but never got there.

At a certain point, this withdrawal scenario ceased being viable.  If Kavanaugh's name was removed, it would have pushed the process too far back and risked the next nominee being voted on by a remotely-possible Democratic Senate.  So, I understand why they're fighting for him now.  But at the start??  They could have had their cake and not only eaten it, but gotten an extra slice with a butter-cream rosette on top.

So, once again, this Kavanaugh nomination is not about Trump.  We know who he is, we know why he nominated Brett Kavanaugh.  Once again, this is all about the elected officials of the Republican Party.  They could have avoided this all -- and easily.  And benefited.  But once again, they caved to Trump and acquiesced to their lowest instincts to allow the disaster of a nominee to head towards a lifetime appointment on the Supreme Court.

​This is about the Republican Party.  Again.

I didn't watch much of the Kavanaugh confirmation hearings yesterday.  Several reasons.  One is that I didn't want my head to explode.  Another is that unless Merrick Garland is sitting there, it's like watching fiction that can still hurt you.  Also, when selecting a lifetime appointment to the Supreme Court, I don't want to hear all that much about how he thinks he's a great guy because he coaches girls basketball which will impact their lives forever.

My friend Myles Berkowitz has occasionally coached his daughter's basketball team, which is probably far more impressive than Brett Kavanaugh doing so since Myles readily admits he doesn't know all that much about basketball.  (Football is his sport.)  Other than telling the girls to hound the best player on the other team and also giving Al Pacino's big locker room speech from the movie Any Given Sunday -- in a Pacino impersonation -- yes, really ("We're in hell right now, ladles.  Believe me"), which mortifies his daughter, he basically tells them to just run around.  He did watch the hearings and called me afterwards and ranted about Kavanaugh praising himself for what he does.  The G-rated version of Myles' comments were basically, "Hey, since I coached girls basketball, does that mean I'm qualified to be a Supreme Court Justice?  And trust me, this doesn't change the girls' lives forever.  They won't even remember their coach 20 minutes later.  Believe me.  The only thing they'll remember about you is that you got them juice boxes."

One thing did stand out for me, though.  And on the surface, it seems a minor thing.  The video you might have seen of Judge Kavanaugh ignoring the Parkland father who had lost his daughter and tried to greet him.  It was a small moment, and bending over backwards to be fair, I thought it remotely possible that either Brett Kavanaugh didn't know who he was speaking to, or perhaps he had so much on his mind (this was a Supreme Court confirmation hearing, after all) he just didn't want to be distraction.  Subsequently, I've seen a more extended video, and heard an interview with the father who made clear he was well-identified.  Still, was rude, it still struck me as minor, given what the event was.

But then last night, I saw this from the excellent reporter Natash Bertrand of The Atlantic.  She wrote --

"Fred Guttenberg, whose daughter died in the Parkland shooting, tells @CNN that Kavanaugh not only wouldn’t shake his hand—he asked security to remove Guttenberg from the hearing, and identified him by the bracelets he wears to commemorate his daughter."

So, this is no longer about rudeness.  This is about character.  This about who the person is who will be getting a lifetime appointment to the Supreme Court to sit and pass judgement on the laws of the nation.  And rather than being the cool dad who loves coaching girls basketball, he's a cold, heartless, self-righteous, mean-spirited, hypocritical churl.

Give me Myles Berkowitz on the High Court compared to that any day.

This is a fascinating, and chilling article from Natasha Bertrand, a terrific reporter for The Atlantic.  it tells in detailed stories how Russia is using the legal systems of other countries, including the United States to cause serious harassment of Russian dissidents and those it considers enemies.  They do this by putting a "Red Notice" on people, which thought it sounds Russian is actually a term from Interpol.  (It's the title of the excellent book I've mentioned here by Bill Brower about his involvement with Russia which lead to the murder of his Russian attorney, Sergei Magnitsky, which lead to the Magnitsky Act.  And which subsequently lead to the infamous Trump Tower meeting, since Putin wants the law overturned.) 

The United States does not have an extradition treaty with Russia, so if there are any dissidents or enemies that Russia wants to deal with, they can't go through the State Department or courts.  But they can use Interpol, and put Red Notices on people, which this administration has followed through with the use of I.C.E.  That's because so many of the dissidents have fled to the U.S. for asylum, but for whatever reasons may have overstayed their visas.  And that makes it an "immigration issue."  And so, enter I.C.E. 

As Bertrand notes, the problem is that U.S. courts treat the situation as if Russian courts are the same as ours.  So, if a dissident has been charged with a heinous but bogus crime in Russia to shut them up, our courts see that as legitimate.

She ends the article this way --

"A lawyer who has been following this phenomenon closely, and who requested anonymity because he was not authorized to speak with the press, put it this way: 'The Russians have figured out how to weaponize this. We have this tremendous system of justice here which isn’t equipped to address nonjudicial questions, like ‘Is this litigant seeking to abuse our entire judicial system?’'”

Check the article out here.

Okay, I didn't see that coming.  But then I don't appear to have been alone.  So, Anthony Kennedy is leaving the Supreme Court.  Various thoughts.

First -- Aghhhhhh.

Fine, enough of that.  That pretty much covers it all.  And so we move on.

For all the observations over the years that Kennedy was the swing vote -- and he was -- in more recent years he appears to have been swinging much more to the right.  I saw a graphic yesterday that said of the 14 decisions this year where the Supreme Court was split 5-4, they all were conservative with Kennedy voting with the right wing.  That's not to say he didn't vote more moderately or even liberally on occasion.  But at least for the past year, those votes came when they weren't as critical to change the result.  His last two votes were particularly troubling for liberals -- allowing the limited travel ban on Muslims and permitting employees of "public sector" jobs that are covered by unions (like teachers, police officers and other public employees) to withhold dues while still getting protections from the contracts negotiated.  (Gee, what a swell idea, which sort of contradicts the very point of unions -- I mean, hey, why join a union if you can get the protections?)

This isn't to say that whoever Trump names won't be far more reactionary and not ever a swing vote.  But then, if you're always swinging right these days, it doesn't matter significantly if that fifth vote is a quiet, tentative aye, or a booming AYE!!!!  It's still an aye.

I know there was a lot of discussion in the media yesterday about what action Democrats can take about this upcoming nomination, to perhaps get the votes that will allow them to do what Republicans did to block Merrick Garland.  An aye for an aye, as it were...  A couple things:  first, that seems a long shot given that they're in the minority, whereas Republicans were then in the majority.  Added to that is there are probably a few moderately conservative Democratic senators up for re-election this fall where blocking a conservative nominee would be seen as problematic in their home states.  So, they might vote yes -- meaning that Democrats would have to get even more Republicans to flip and vote no in order to put the nomination on hold.  That's possible, if those few Republicans can be convinced it means losing Roe v. Wade otherwise -- but it's another long shot.  Which leaves convincing Republicans to live by their own sick, made-up rule of not voting on a Supreme Court nominee right before an election.  And that, of course, is also a long shot.  Not only on basic principle, asking Republicans to act against their own self interest and country -- but also, as much as Democrats have been trying to make the case that the two situations are the same...they aren't the same.  Republicans reprehensibly held off voting on Merrick Garland because they made the then-empty case that whoever was elected president should get to name the next nominee -- not that the next elected-Senate  should be allowed to vote on the next nominee.   

Which brings up another point -- let's say Democrats somehow, someway do manage to hold off the next nominee until after the mid-term election.  A) By all accounts, people aren't expecting Democrats to flip the Senate, so then we'd be right back where we are now.  And B), if for some reason Democrats do take the Senate, do they expect to not approve a nominee for two more years?  And that's beyond the the additional next six months until the next Senate is sworn in  Perhaps the "dream" is that if they unexpectedly manage to take the Senate, Trump will then feel compelled to name someone more like Anthony Kennedy, a swing Justice, rather than a doctrinaire conservative.  It's possible, sure.  But toss in yet another long shot.

There are a LOT of long shots here.  And when you get that many piling up, your really shouldn't expect them to come through.  Traveling in the land of "If...and if...and if...and if...and if this all happens, then....maybe, possibly conceivably this could happen," is no way to fly.

So, it seems pretty likely that Trump will get his nominee.  The only serious hope is that he or she is not profoundly, unbendingly conservative -- or head-bangingly pathetic (like if he does nominate "Judge Jeanine" like he supposedly wanted to before endding with Neil Gorsuch). which is what all the Democratic battling now should hope to accomplish.

Left out of much of the discussion I heard yesterday was mention of what I think is even a worse situation.  (And yes, how about that?!  There is an even worse situation.)  And that's what happens during the next 2-1/2 years if Ruth Bader Ginsberg leaves an opening.  If that happens, the closer it is to the next presidential election then the more hope there is that it could be held off replacing her.  Admittedly, the concept of a Ginsberg opening is yet another "if" -- but that's a serious possibility, long discussed because of her age and health.  And if it occurred, that would mean replacing, not a fairly-conservative swing vote with a serious conservative, but one of the most liberal voices the Court has had.  I wish her the best.  I wish us all the best.

And as for "the best" -- the best I can see coming from all this are two things.  The first is, as mentioned, that Democratic senators can put up a good another fight to make the White House see that a somewhat more moderately-conservative nominee is named.  And the second is that Trump having this nominee to name (and possibly two, eventually) will grippingly galvanize liberals, progressives and independents in a way that will guarantee not just a Blue Wave but a Blue Tsunami and maybe even flip the Senate (which would offer a protection for that other opening, should it come).  After all, this is really significantly more a Democratic election issue than a Republican one.  You aren't likely going to get Republican voters rushing to the polls in a mid-term election to defend a Supreme Court nominee they already have.  But you are likely to get Democrats horrified and with their hair on fire whatever happens in the months before the election -- whether the nominee is already confirmed, which makes a Democratic House and Senate all the more necessary, or whether it turns out the nominee isn't yet confirmed...which makes a Democratic House and Senate almost all the more necessary, or maybe more so.

There isn't a "good view" on this, unfortunately.  But there are some possibly good takeaways that can come from it.  And driving Democrats (and perhaps independents) to the polls in massive droves is the one, possible "if" that could be very good.

I'll keep my comments brief.  I do so because if I don't significantly self-edit myself here, I'll probably keep writing for the next several hours, and this would be so long that I'd risk driving away readers from here permanently.

I'll just say two things.

First, there are many things that are absolutely legal, but we don't do them because as mature adults we know they're stupid, cruel, unnecessary, wasteful, counter-productive and more.  It's perfectly legal to buy a bulldozer in order to crack open one walnut, but people simply don't do that because...well, it's because I don't have to explain "why" that makes clear why people don't do it.  It's legal to stand in your front yard and spew racial epithets at random minorities who walk by, but even the most virulent racists don't generally do that.  The world is full of legal actions that people don't do because being legal doesn't make them right.  So, even though the Supreme Court in its heavily-conservative bias removed the injunction against Trump's third attempt at a watered-down but still-impactful travel ban against Muslim, actually putting it in operation would devastate America's standing in the world, and play directly into the late-Osama bin Laden's hands by creating a culture war, helping terrorists recruit followers.  (It will also, on a purely-political level, pound the GOP.  The public doesn't actually care much about Yemen and Chad, that's not going to drive Republicans to the polls -- but we see how awakened and furious so many Democrats have become over Trump immigration cruelty.)

And second, if Mitch McConnell (R-KY) and the enabling Republicans didn't shred a portion of the Constitution, Merrick Garland would be a Supreme Court Justice today, and this ruling would not be in effect.

And with that, I finish.  Mr. Speaker, I yield the rest of my time to Justice Sonia Sotomayor.  Here are excerpts of her minority opinion to the Supreme Court ruling.  She not only wrote out her opinion, in which she was joined by Justice Ruth Bader Ginsberg, but she took the rare step of reading it out loud.  

I preface it with a comment yesterday from Nina Totenberg, longtime legal affairs correspondent for National Public Radio.

​​"The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle."

Later, she continues --

"It leaves undisturbed a policy first advertised openly and unequivocally as a 'total and complete shutdown of Muslims entering the United States' because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus."

Justice Sotomayor adds --

"Moreover, despite several opportunities to do so, President Trump has never disavowed any of his prior statements about Islam. Instead, he has continued to make unrelenting attack on the Muslim religion and its followers. Given President Trump’s failure to correct the reasonable perception of his apparent hostility toward the Islamic faith, it is unsurprising that the President’s lawyers have, at every step in the lower courts, failed in their attempts to launder the Proclamation of its discriminatory taint."

In her opinion, she referenced a 1944 Supreme Court case, Korematsu v. United States.  This was the long-since ruling that ordered Japanese-Americans into internment camps during World War II and which was officially overturned on Tuesday. . However, Sotomayor wrote that Tuesday's decision on Trump's policy isn't that different from the Korematsu case.

"This formal repudiation of a shameful precedent is laudable and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one 'gravely wrong' decision with another."

For her conclusion, it's notable that Supreme Court protocol is that when Justices deliver minority opinions, they end by saying that they "respectfully dissent."  Only on those rare occasions when their disagreement is deeply fundamental do they leave out the "respectfully."  She wrote --

“Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.”

You may have seen the news story today that a group of prominent community leaders in Washington, D.C. have filed suit that the liquor license for Trump International Hotel there should be revoked because he, as owner, is not "of good character."

I note this because one of the complainants is Rabbi Jack Moline -- who as longtime readers of these pages know -- is one of the Board of Directors of Elisberg Industries.  (You can check out more on the good fellow under "About Elisberg Industries / Our Corporate Board."  Or also read this article here that I wrote on Jack, with whom I've been friends since we went to high school and Northwestern University together.)

Hey, when our fine Board of Directors has been put together, we do our best to provide only the finest for our appreciated readers.

I've tried to embed the press release below, and it should work.  You can scroll to the last page where it shows the bios of the various judges, pastors, reverends and rabbis who have field the complain, and see Jack's bio there, second from the bottom.  I note, as well, that right below him is Rabbi Aaron Potek, who is says served as campus rabbit from 2013-2015 at...Northwestern University.

Over the weekend, Rudy Giuliani made an outlandish statement about how a president couldn't be indicted or prosecuted while in office, adding that there was only one way the Constitutional process could deal with, for instance, Trump.  “If he shot James Comey, he’d be impeached the next day,” Giuliani told the Huffington Post. “Impeach him, and then you can do whatever you want to do to him.”

The comment got a great deal of reaction for its ludicrous legal analysis.  But most everyone was criticizing the wrong thing.  They missed the part that was so horrific.  Not everyone overlooked it -- Joe Scarborough commented on it, and Ari Melber even devoted part of a segment on it for his terrific MSNBC show, with a properly outraged RIchard Painter, former White House Ethics Chief for George W. Bush, and now a Democrat running for the Senate in Minnesota.

The point that most people overlooked was Giuliani talking about shooting James Comey.  You don't do that.  With all the far right hatred that Trump is stirring up over the former FBI DIrector, you Do Not toss out even as a wild example for the pure sake of discussion the concept of shooting James Comey.  And attach Trump's name to the action.  Yes, yes, I know it was not meant as an actual threat, but just a legal argument -- I also know that there are a lot of crazy, angry people in the world who a) don't listen closely, b) don't get nuance, c) miss the point, d) are so crazy and angry they don't need much prompting, e) know they understand what he "really" meant, f) get word second hand of what said that gets passed along incorrectly and g) fill in the blank with your imagination.

I'm trying to think of the proper word to describe Giuliani's comments.  But nothing does it justice.  "Irresponsible" doesn't go far enough.  "Ghastly" is too commonplace in this administration.  "Horrifying" only touches the surface.  "Sickening," "Dangerous," "Pathetic," and "Galling" only dance around the concept -- even if you string them all together.

I liked that during the Melber discussion, the question was raised, and I paraphrase as best as I can recall it, "What do you think would have happened if it wasn't Trump they were talking about, but a mob boss -- and his lawyer made a comment like that about shooting a witness?"  The response from all the lawyers on the panel was along the lines of how it would have been considered an attempt to intimidate witnesses, and it could have been a cause for disbarment.

That's how [fill in the blank] it was.  But since it was about Trump, we have come to accept such things as almost "normal."  And so we focus not on what was the absolute worst [fill in the blank] part and just deal with the ludicrous legal analysis from a once-top notch lawyer who has now lost it.

​I won't even say "Shame on Giuliani" because that does a disservice to shame.

And today, we have a guest tweeter.  This is The Trump Edition --
​

​So, you know that part of the discussion for the past year year about how the hardest thing to prove in obstruction of justice cases is a person's intent? I believe that Robert Mueller just checked-off that box. If Trump gets an anonymous box of Thank You chocolates, he should understand that this is the reason why and who it's from.  There's a reasonable chance that the card will say, "You really should have listened at those meetings."

That sound of screaming that you are hearing all day, wherever you are, is coming from Trump's lawyers.  But hey, they took the job.

And Rudy Giuliani is furiously re-doing his "I'll have this over in two weeks" timetable, because the deadline for that is...tomorrow.