lightspeedsound:

OK guys heres the deal.

Brett Kavanaugh’s constant hemming and hawing is just flat out offensive at this point.  Like I get it, there’s a tradition of not publicly saying your stances on certain things that are CURRENT EVENTS that you could be asked to weigh in on the future.  It’s actually a standard used by the Notorious RBG–This Time article sums it up quite well. 

Here’s the thing tho–RBG was ABSOLUTELY WILLING to comment on PREVIOUSLY DECIDED SCOTUS CASES.  She only demurred her answers about 10% of the time (when asked how she WOULD DECIDE on future/potential issues).  

Brett Kavanaugh, on the other hand, is using THIS RULE GOVERNING FUTURE DECISIONS to hem and haw his way into a confirmation.  He’s not just refusing to comment on CURRENT EVENTS, he’s flat out refusing to comment on CASES MORE THAN 200 YEARS OLD. 

Yesterday, he was literally asked about the Chae Chan Ping case from 1889, which basically upheld the Chinese Exclusion Act .  This ruling held that the federal government had the right to exclude immigrants (and deny immigrants the right to naturalize) based on their ethnicity.  The reasoning is delightfully indicative of just how racist America was against Chinese people.  But essentially:

 the US legislature signed a treaty with China that was designed to supersede an old treaty.  The new treaty gave the US rights to regulate immigration coming from China.  Chae Chan Ping arrived in the US and then left the US to visit his family back home.*  Unfortunately for Ping, he tried to return AFTER the new treaty was in place, and thus was barred from entry.

SCOTUS held that the US legislature has a right to draft new treaties and new terms on immigration (which is true, immigration is a federal issue THANK GOD because otherwise think of just how hard it would be to be an immigrant with different rights of entry per state). But also the court said that in the interest of national security, the US Legislature can decide what basis to regulate immigration on, INCLUDING race because hey, that’s their decision (and remember: this is 1889, LESS THAN THIRTY YEARS AFTER THE END OF THE CIVIL WAR). Since this was more about INTERNATIONAL DIPLOMATIC TREATIES than LEGISLATURE, SCOTUS was like “not our job to rule on the validity of this, sorry.”  (ironically, this reasoning has also been used to PROTECT migratory birds….but not migratory humans.)

ANYWAYS. 

As I said, this case is ancient. It’s from 1889.  It’s never been overturned.  Much like the infamous Korematsu case (Japanese internment), it’s often cited as an example of just how terribly racist America’s past is, but also as a way to justify really terrible things in the interest of national security. Not to mention, we STILL have a quota system in place, guys. Although USCIS would like to point out not all countries are entitled to the maximum, just that there is a maximum and “most countries don’t even reach” that max.  Suuuuuuure. 

So here we are.  Kamala Harris point blank asked Kavanaugh what he thought about a case that is MORE THAN 200 YEARS OLD. It’s NEVER BEEN OVERTURNED, but it’s literally that old.  Did she ask about how it affects current immigration laws? No. Did she ask him to interpret what the implications are for CURRENT IMMIGRATION ISSUES? No. She asked him, “Do you think it was wrong?”

And his answer is “I would have to study the case again.” 

DUDE YOU’RE A JUDGE. YOU’RE BEING PROPOSED AS A SCOTUS JUSTICE. I can’t even. This is a case you learn literally in YOUR FIRST SEMESTER OF LAW SCHOOL. You should ALREADY BE AT LEAST TOPICALLY FAMILIAR WITH THIS CASE.  

So fine, you need to read the opinion, but the holding of “it excluded Chinese people from immigrating to the US on the basis of race” is pretty cut and dried. and that’s WHAT YOU ARE ASKED TO COMMENT ON–whether or not it was right to rule that immigrants can be excluded on the basis of race.  It’s a yes or no, but definitely a yes or no that can be qualified (ex: something to be looked at critically, especially in light of national security which has been ruled to be a compelling state interest. And of course we can talk about aliens vs. citizens etc.)

But he didn’t even do that.  He didn’t even have the decency to make any sort of nod to “HEY RACISM IS BAD, RIGHT?” Like NOTHING. 

Here’s the main difference between a Judge and a Lawyer: 

A Lawyer’s personal code of ethics isn’t really ever at play, unless it’s SO AGAINST your client’s personal opinions/position/beliefs that you can’t in good faith represent them. Then you recuse yourself and let another person take over. Your job is to lay out your client’s position to the court, support it with some good law and arguments and analysis, and call it a day.  

But a Judge? A Judge’s PERSONAL BELIEFS ARE ALWAYS IN PLAY. Because here’s the thing: there’s always a loophole in interpretation.  Whether or not you’re willing to listen to each side’ argument is a consideration, sure, but even beyond that, your personal biases are always going to inform your decision making.  Whether or not you find certain things persuasive or not is VITALLY IMPORTANT, especially, ESPECIALLY as a SCOTUS justice.  Because guess what–SCOTUS can toss out laws.  They can say “no, this is wrong. This is not how it should be.” Brown v. Board. Roe v. Wade. Loving v. Virginia. All of these cases involved situations where THE SHIT BEING QUESTIONED WAS LEGALLY ON THE BOOKS, BUT THE LAW WAS FOUND TO BE UNCONSTITUTIONAL on the grounds of things like civil rights and equal protection. 

Now the Constitution can be changed. They’re called Amendments. And SCOTUS, as the highest court in the land, has the power to look at the Constitution and ANY OTHER LAWS and find internal inconsistencies or just flat out “wrongness” and alter that. 

And Kavanaugh can’t even give a straight answer as to whether or not he thinks CHinese people should be allowed in this country? REALLY? 

I wish they had asked him about Dred Scott.  I wish they had asked him about Prigg v. Pennsylvania.  I wish they had asked him about Wong Kim Ark. Because these are all cases that happened HUNDREDS OF YEARS AGO but speak to just how racist America was (and honestly, is). But they certainly aren’t current. And honestly, at this point, I would really like to know how racist Brett Kavanaugh actually is. 

I am a Chinese American lawyer. I am the daughter of immigrants. But I was born here, in the US of A.  Thanks to the ruling of Wong Kim Ark, my citizenship has never been questioned. But now we are entering a new era, where rulings that are considered FUNDAMENTAL to the history of the US, fundamental rights that as US citizens, we take for granted are BEING QUESTIONED. 

Two hundred years ago, my existence would have been impossible. I am an American Born Chinese Woman with a law degree. I work as an employee of the state. I wouldn’t have been allowed to be born. And even if I was, I would have had to fight for the right to be educated. I would have had to fight for basic human rights like THE RIGHT TO TESTIFY AS A WITNESS. I would have been forced into sex slavery or forced to conceal my existence from the world.  A lot has changed since then, but a lot hasn’t.  Racism is still around, and even those changes that have allowed my existence are being questioned.

So yes, Brett Kavanaugh, even if you can’t talk about your position re: current events, you can at least tell me if you agree with a 200 year old case ruling that was 100% racist to its core. You can tell me if you think that it was racist, or if you think that the ruling could be narrowly tailored. You can opine on things like slavery and racism and women’s rights.

But here’s the thing:  The fact that you think professing ignorance on this case is better and safer than actually opining on it tells me what I need to know already. 

——-

*

a regular practice at a time when Chinese women were banned from immigration to the US, because the US didn’t want American-born Chinese to be a thing because OH NO WE DON’T WANT CHINESE AMERICAN CITIZENS! …..which, incidentally, the US government later tried to make a thing they could decide based on race as well.