James P. Freeman: Questions for Kavanaugh's kickoff

1908 cartoon, by W.C. Morris,  highlighting the dangers  associated with the football.

“Football is football and talent is talent. But the mindset of your team makes all the difference.”

–Robert Griffin III, Quarterback, Baltimore Ravens and 2011 Heisman Trophy Winner

As Americans prepare for fall and football, the new political season kicks off the day after Labor Day with public hearings in the Senate Judiciary Committee as part of the confirmation process of  Federal Appeals Court Judge Brett Kavanaugh’s nomination to the Supreme Court. Little is known about the judge’s mindset or how he’ll play on the team. And during the upcoming televised stagecraft partisan Senators will likely get bogged down in jurisprudential minutia unintelligible to every day people.

So here are some questions that might elicit better insights:

1. Judge Kavanaugh, on Jan. 22, 1973, the court affirmed the legality of a woman’s right to abortion under the Fourteenth Amendment to the Constitution. Since that time, it is estimated that there have been over 60 million abortions in the U.S. It is still a contentious issue. Much has changed in those 45 years: biological and scientific revelations, legal and economic assumptions, and political and social values. Given all we know today, what are your thoughts on “fetal viability”? Is it time to reconsider that concept as it applies to constitutional law? Why or why not?

2. Since the Supreme Court was established in 1789 there have been a total of 113 people who have served on the high court. Of this elite and select group — among the living and the dead — whom do you most admire and why?

3. You worked in the 1990s on the team (led by Independent Counsel Kenneth Starr) investigating the Whitewater matter. Those efforts eventually, and remarkably, led to the impeachment of President Bill Clinton. In February 1998, you were part of a panel discussion about the future of the Independent Counsel Statute (1978). You raised the question of whether a sitting president could be subject to criminal indictment at all. (You called it a “lurking constitutional issue” that should be “resolved so that we can determine whether the Congress or an independent counsel can investigate a president when his conduct is at issue.”) What are your thoughts on the matter today? What parallels do you see between the investigation of Clinton and today’s investigation using an independent counsel that is edging ever so close into the red zone of President Trump’s presidency?

4. What is the most important opinion you have written as an appeals judge? Why?

5. Here’s a riddle: Which of the following is considered in some circles a violation of state and federal law and hence an affront to individual liberties? (A) Requiring identification to board a plane. (B) Requiring ID to purchase cigarettes and alcohol. (C) Requiring ID to open a bank account. (D) Requiring ID to enter into corporate and government offices. (E) Requiring ID to vote in state and federal elections. If you guessed “E” you are correct! If public officials initiate steps in choice E, are such measures unconstitutional? Why or why not? Might any of these be deemed unconstitutional? Why or why not? On the night President Trump nominated you to the court, did you need to show ID to walk into the White House?

6. Since the inception of the court, there have been 91 Protestant judges named out of 113 justices. Roger B. Taney was the first Catholic to serve on the court, beginning in 1836. In more recent times, Catholics have dominated the court. At one point, when justice Antonin Scalia was alive, there were six Catholic justices on the same court. If you were to be sworn in to the court today you would be the fifth Catholic justice (joining John Roberts, Clarence Thomas, Samuel Alito, and Sonia Sotomayor). How has your Catholic faith shaped and informed your judicial philosophy? Did the court get it right last year in the separation of church and state case Trinity Lutheran v Comer?

7. Are The Federalist Papers still relevant today in terms of interpreting and understanding the original intent of the Constitution? Why or why not?

8. In an October 2016 ruling, PHH v Consumer Financial Protection Bureau, in a case involving the unbridled power of what some would call extra-constitutional congressional creations, you wrote that, “Indeed, other than the President, the Director of the CFPB is the single most powerful official in the entire United States Government, at least when measured in terms of unilateral power.” You added, “The concentration of massive, unchecked power in a single Director marks a dramatic departure from settled historical practice and makes the CFPB unique among independent agencies.” Can you further articulate your philosophy on the separation of powers and overreaching executive authority? What other government entities, in your estimation, resemble those of the CFPB?

It remains to be seen on Sept. 4 if Brett Kavanaugh will fumble the opening kick off or return it for a long touchdown. But it is certain he will be brushing up on the playbook.

James P. Freeman is a New England-based essayist and a former banker.

James P. Freeman: Applying data analysis to Supreme Court nominees

U.S. Supreme Court Building.

Last autumn, techrepublic.com concluded, with its feature “How big data won the 2017 World Series,” that America’s pastime was more the cold science of analytics than the graceful art of, say, a George Springer swing. This fall, progressives hope that big data will win the day to thwart Judge Brett Kavanaugh’s ascension to the Supreme Court.

When the book Moneyball: The Art of Winning an Unfair Game was published in 2003, it acted as a catalyst for Major League baseball teams to “start taking data-based decision making more seriously.” The employment of metrics was also rooted in cost-effective ways to win. The prize was the Fall Classic.

Baseball, already known for its rich sediment of data, hired experts to “make data-driven decisions based on predictive analytics.” Perhaps the biggest manifestation of data predicting outcomes is the use of “the shift” — a technique where a coach will move his defensive players to one side of the field knowing, in advance, that a hitter will put a ball into play there a statistically significant number of times. (Shifts increased from 2,350 in 2011 to 28,130 in 2016). TechRepublic notes that teams with a “prowess with data” — the once moribund Boston Red Sox, Chicago Cubs and Houston Astros — are recent World Series champions.

Some now believe that these methodologies can be applied to Supreme Court nominees.

Data for Progress is, in its own words, “the think tank for the future of progressivism.” Claiming that “a new generation of progressives is rising,” it wants to be the Elias Baseball Analyst for left-leaning causes. Using scientific techniques to support progressive activists and issues, it also aims to “challenge conventional wisdoms about the American public that lack empirical support.”

Areas of its research include: “Multilevel Regression and Poststratification analysis,” to provide “reliable sub-national opinion estimates on progressive issues;” “deep learning textual analysis of media;” and “data mining and analyzing social media data for politicians and pundits to find interesting trends and patterns.”

Pitchers and catchers beware!

In another sign of the miniaturization and mobilization of complex matters on social media, Data for Progress prefers to distribute its research over the internet because “data can only help interpret the world.” (Many credit its co-founder, Sean McElwee, with inspiring the “Abolish ICE” movement based upon a tweet he posted in early 2017.)

Today, however, McElwee is focusing on the Supreme Court. And his opposition to Judge Kavanaugh.

Data for Progress believes that a Kavanaugh seat on the high court would set back progressive causes in areas such as voting rights, Medicaid, corporate pollution, unions, gerrymandering, and, most urgently, abortion rights.

A key component of its approach is that ideological implications can be measured. Data for Progress uses a political science methodology called Judicial Common Space, which seeks to answer, among other things, why courts make the decisions they do. Judicial politics, like a Chris Sale slider, can be measurable and explainable. Or can it?

Justices are “scored” or measured in similar ways that members of Congress are measured for their roll call votes. So, Justice Sonia Sotomayor appears on the left of the spectrum and Justice Clarence Thomas appears on the right. But, like all computer modeling, how Kavanaugh fits into the equation — hence, how he would affect the ideological balance of the court — is entirely hypothetical.

Data for Progress suggests that judicial reasoning is necessarily a linear process; past judicial decisions are a measurable and definitive predictor of future decisions. This in turn determines where judges stand on an ideological plane.

For Data for Progress — even if its quantitative analysis stands close scrutiny — prospective liberal justices are acceptable and conservative justices are not. Big data is now political fodder for modern progressives.

But history may prove McElwee and Data for Progress wrong.

In a recent piece for The Nation, McElwee argues that “Democrats Must Stop Pretending the Supreme Court is Apolitical.” He worries about the looming “threat” of a Supreme Court that could “reverse progressive legislative accomplishments.” When did Democrats stop believing the court was apolitical?

In 1937, President Franklin D. Roosevelt, a Democrat, attempted a ''court-packing” plan. His motivations were entirely political. He intended to shape the ideological balance of the court so that it would cease striking down his New Deal legislation. And in 1987, Democrats launched a full partisan attack on the nomination of Robert Bork to the high court. The conservative jurist was soundly defeated over what conservatives believe were purely political motivations. There is a long history of partisan battles in picking Supreme Court justices.

And Data for Progress’ fears of the court — and, by extension, the nation — being held hostage by conservative justices for years to come may be mistaken. In fact, big data may prove Data for Progress to be just another political lever of the progressive organ. And render their rantings moot.

Fivethirtyeight.com concluded three years ago that “Supreme Court Justices Get More Liberal As They Get Older.” The “ideological drift” of justices is cited in a 2007 academic paper. The authors of the study, using scores based on data from the Supreme Court Database, write that: “Drift to the right or, more often, the left is the rule, not the exception.”

A 2005 New York Times expose, “Presidents, Picking Justices, Can Have Backfires,” should be a reminder to Data for Progress that, despite a wealth of data, Supreme Court justices’ ideology is malleable and subject to change. As President Eisenhower learned of  Chief Justice Earl Warren and President George H.W. Bush learned of Justice David Souter.

Whatever their political persuasions, Americans are now keeping score in two spectator sports because of big data.

James P. Freeman is a former banker and now a New England-based essayist. This piece first appeared in Inside Sources.