Saturday, October 13, 2018

The Quality of Harshness: Kavanaugh And His Self-Serving Double Standard On The Age Of A Criminal Accusation

The idiocy that "justice" is and should be impartial instead of always in service of the right of people to cast a free and informed vote is poison to legitimate government and is, itself, illegitimate.  The result always has to be egalitarian and that the arc of justice which doesn't bend in the direction of equality, good will and a decent life for all is bent in the wrong direction   Our justices are bent in that wrong direction, certainly five of them and I would keep a close eye on the other four, at times.

I thought I would start where I left off the other day because, Brett Kavanaugh has already had the effect of bending the arc farther in the wrong direction, even worse in this instance than Neil Gorsuch:

A Supreme Court argument on Wednesday over the detention of immigrants during deportation proceedings seemed to expose a divide between President Trump’s two appointees, Justices Neil M. Gorsuch and Brett M. Kavanaugh.

The question in the case was whether the federal authorities must detain immigrants who had committed crimes, often minor ones, no matter how long ago they were released from criminal custody. Justice Kavanaugh said a 1996 federal law required detention even years later, without an opportunity for a bail hearing.

“What was really going through Congress’s mind in 1996 was harshness on this topic,” he said.

But Justice Gorsuch suggested that mandatory detentions of immigrants long after they completed their sentences could be problematic. “Is there any limit on the government’s power?” he asked.

Justice Stephen G. Breyer pressed the point, asking a lawyer for the federal government whether it could detain “a person 50 years later, who is on his death bed, after stealing some bus transfers” without a bail hearing “even though in this country a triple ax murderer is given a bail hearing.”

The report in the Times notes that Gorsuch, in what I assume will be a rare departure from Republican-fascist jurisprudence sided with the four "liberals" on the court instead of the four who thought as Kavanaugh will on such matters.  It took Breyer some doing to get the Trump lawyer to answer the question and if Gorsuch hadn't intervened to say that Breyers' question was also his question, I'll bet he wouldn't have.

“Mr. Tripp, we’re quibbling,” Justice Gorsuch said. “Justice Breyer’s question is my question, and I really wish you’d answer it.”

Mr. Tripp eventually responded, “This applies regardless of time.” He added that Congress had intended that harsh result.

Brett Kavanaugh wasn't hesitant to say that Breyer's theoretical about someone who had stolen bus transfers a half a century ago should be given the maximum possible interpretation of the statute, no matter what the crime was or how old it was.

The United States Court of Appeals for the Ninth Circuit, in San Francisco, concluded that the law requires mandatory detention only if the federal authorities take immigrants into custody soon after they are released.

“Because Congress’s use of the word ‘when’ conveys immediacy,” Jacqueline H. Nguyen wrote for a unanimous three-judge panel, “we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”

Justice Kavanaugh disagreed, saying the 1996 law put no time limits on the detentions it required.

“That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so,” he said.

Justice Breyer said the solution was to allow immigrants detained long after release from criminal custody to have bail hearings. He said those would allow immigrants who were not dangerous and who posed no flight risk to return to their communities. “The baddies will be in jail,” he said, “and the ones who are no risk won’t be.”


Justice Kavanaugh disagreed. “The problem is that Congress did not trust those hearings,” he said. “Congress was concerned that those hearings were not working in the way that Congress wanted and, therefore, for a certain class of criminal or terrorist aliens said, ‘No more.’”

I am no lawyer but I seem to remember less than two weeks ago the question of the age of a  criminal complaint and whether or not it should impinge on, not criminal penalties but in a job interview came up and Kavanaugh and his supporters thought that the age of the crime should lead to even refusing to really look into it.  I fail to see how this isn't him taking advantage, for himself, of a position which he is now, on the Supreme Court he is ready to impose the opposite on untold numbers of people, certainly most of whom where not born with a silver spoon or who have had credible claims of sexual assault and attempted rape made against them. 

No doubt, in the unlikely event that the authorities in Maryland prosecute him, Kavanaugh will insist that the age of the crime matters entirely in whether or not he is held to account for them. 

The quality of mercy is not strained;
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest;
It blesseth him that gives and him that takes:
‘T is mightiest in the mightiest; it becomes
The throned monarch better than his crown:
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthron├Ęd in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God’s
When mercy seasons justice. Therefore, Jew, 
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea;
Which if thou follow, this strict court of Venice
Must needs give sentence ‘gainst the merchant there.

But Portia never met the Republicans on the Supreme Court or in the Senate. 

Portia, I need to point out, never went to Yale Law School.  She wasn't steeped in the legal tradition built up under Justices under the American Constitution, she never worked as a Republican operative, she never rose under the American system of privilege in which such mercy is rained on the elite that Kavanaugh is part of and which he serves.  Kavanaugh might have had to read The Merchant of Venice when he went to Georgetown Prep, he might have seen a production of it somewhere, but you need to invert just about everything in that famous speech to get to where the United States Supreme Court is and has been most of its existence.  Not that the British English law which the author was, certainly deeply steeped in was any better.  Judges and certainly "Justices" have never had much of a problem of making a mockery of that part of the law.   "In the course of justice, none of us should see salvation: we do pray for mercy."  Mercy is not what the Kavanaughs are about, I'll bet it's rarely what Gorsuch is about.  It certainly wasn't what he was about in the famous case in which he said a company could fire a trucker whose only choices were disobeying orders from a dispatcher or freezing to death.  Maybe he's had a change of heart upon his elevation?  I've seen it happen.  Exactly once.  If he has, he'll be the one the Republicans say "never again" over, not Souter. 

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