Down is up in GOP land- McAdams, Kavanaugh and other BS

For this weekend's reading, I wanted to talk about how a couple of recent instances illustrate how right-wingers have built up a whole side business of legal BS that is not being checked in any meaningful way. Often because the judges that decide these things are spawned from the same cesspool that allows them to claim "down is up."

A great example was in the recent Wisconsin Supreme Court case reinstating law professor John McAdams to the Marquette University faculty. Bruce Murphy had an excellent rundown of the McAdams case in Urban Milwaukee this week exposing the absurdity of the 4-2 decision in McAdams favor.

As Murphy points out, Marquette decided to suspend McAdams because he encouraged harassment against graduate student Cheryl Abbate after she hurt the fee-fees of a right-wing student in one her classes. The student said there should have been a discussion of whether to disallow gay rights as part of a topic on “justice as fairness”, but Abbate said that wasn’t relevant to what was being discussed in class.

The student just happened to record the post-class conversation he had with Abbate and passed it ahead to McAdams (that’s normal, isn’t it?). Then McAdams used the recording to continually to hammer on the instructor in his blog, as Murphy notes.

In both the first post and subsequent ones, McAdams linked to Abbate’s email, making it easy for people to harass her. This post resulted in a number of messages threatening the graduate student, resulting in her leaving Marquette for another university. McAdams then published the name of the university to which Abbate had transferred, enabling the harassment to continue.

MU administration originally planned to revoke McAdams’ tenure and fire him, but the university’s Faculty Review Committee (FRC) overruled that, lessening the punishment to suspension without pay for 1-2 semesters. As Murphy points out, the FRC said the reason McAdams deserved punishment was for his continued harassment, which caused a hostile workplace for Ms. Abbate.

… Dr. McAdams’s conduct with respect to his November 9, 2014 blog post violated his obligation to fellow members of the Marquette community by recklessly causing harm to Ms. Abbate, even though that harm was caused indirectly. The Committee concludes that the harm to Ms. Abbate was substantial, foreseeable, easily avoidable, and not justifiable. …

Second, the Committee concludes that the University has demonstrated that Dr. Mc-Adams’s conduct was seriously irresponsible, and that his demonstrated failure to recognize his essential obligations to fellow members of the Marquette community, and to conform his behavior accordingly, will substantially impair his fitness to fulfill his responsibilities as a professor.

This rationale was upheld in Milwaukee County Circuit Court, but McAdams worked with fellow Marquette Law colleague Richard Sleazybuckets Esenberg (who spins works for the right-wing Bradley Foundation front group Wisconsin Institute of Law and Liberty) to appeal to the right-wing hacks on the Wisconsin Supreme Court. And they got the 4 right-wing “justices” to agree with their argument that somehow McAdams’ post-work blog postings and encouragement of harassment was protected under “academic freedom”.


Just look at these jagbags

What Murphy points out is that “Justices” Bradley, Kelly, Roggensack, and (lame-duck) Gableman along with the right-wing MU professors introduced a pet issue of “right-wing free speech” in a case where it didn’t exist.

This irony is more apparent than real. That is because this is not an academic freedom case. No one is challenging McAdams’ right to post whatever thoughts he has on issues of public concern. Instead his willingness to publicly attack a student, while supplying contact and other information that allows his readers to harass and threaten Abbate was the basis of the sanctions imposed by Marquette.

Lastly, Murphy brings up that this decision now greatly ties the hands of universities to administer their own affairs – both private and public affairs. That’s hardly a conservative opinion, and it also illustrates how the right-wing “Justices” on the Wisconsin Supreme Court often make up BS to fit the outcome that they want to see.

1. The result is that the models for shared governance at all Wisconsin colleges and universities are likely in a state of limbo. As Justice Ann Walsh Bradley points out, the court has diminished the ability of these private educational institutions to make their own academic decisions in fulfillment of its unique mission. In the future, not only will Marquette become less autonomous but so will other Wisconsin private colleges and universities.

2. Finally, the decision confirms a disturbing trend apparent in earlier cases, such as that shutting down the John Doe investigation of coordination between Walker’s campaign and various ostensibly independent organizations. Wisconsin’s Supreme Court has become an instrument of a clique of right-wing ideologues. If a liberal Marquette professor had set up a conservative student for public abuse it is hard to imagine these justices would have been as outraged or ruled in the same way.

And what’s happening in Wisconsin is a version of what has been done nationwide, where lots of right-wing money has been invested into lawsuit mills like WILL and other BS to develop lawyers and judges who will make stuff up to further the wants of their paymasters.

And few exemplify this more than Donald Trump’s nominee to the Supreme Court, Brett Kavanaugh. As Charles Pierce notes in Esquire , Kavanaugh has worked and promoted GOP causes pretty much from the moment he graduated law school.

Interestingly, as the principal author of [Kenneth] Starr’s eventual soft-core classic [as part of the 1990s investigation into President Bill Clinton], Kavanaugh reportedly went to Starr with “moral” objections to the most prurient passages, many of which, of course, were the result of lines of inquiries that Kavanaugh himself had suggested. This puts into an interesting light the now-famous article Kavanaugh wrote [in 2009] for the University of Minnesota Law Review in which Brett Kavanaugh, onetime gumshoe for a special prosecutor, argued that presidents should not be pestered by criminal inquiries while in office.

(In his defense, it should be noted that Kavanaugh primarily argued that this was a question the Congress should address. This, of course, implies that, until Congress does so, it’s still open season.)…

I’m not entirely sure, but it seems to me that, having been part of squeezing the Great Penis Hunt for every ounce of its political advantage, Kavanaugh here is arguing that the statute that had empowered him to do so led in some vague way to the attacks of September 11, 2001. (Kavanaugh was working in the White House that day, and he mentioned in his remarks Monday night how he and his future wife were scrambled out of the building when it was believed that another plane was inbound.) Make no mistake. Before he is anything else, Judge Brett Kavanaugh is a political animal. Senator Richard Durbin, Democrat of Illinois, once referred to him as the “Forrest Gump of Republican politics.” Kavanaugh has played a major part in every major Republican politico-legal event of the past quarter-century.

In addition to his deep involvement in the Starr investigation, Kavanaugh also worked on the legal team that fought the Florida recount in 2000. This led to a job in the George W. Bush White House and, ultimately, to his nomination to the bench, which the Democrats in the Senate managed to hold in abeyance for almost six years, citing Kavanaugh’s political activities and his lack of judicial experience.

Since becoming a judge, Kavanaugh has been a dependable ally of the corporate class; he has delivered opinions in which he argued that the Consumer Finance Protection Bureau is unconstitutional and also that the president* can simply declare a law like the Affordable Care Act unconstitutional and then refuse to carry it out. It’s been a long time since we had a Supreme Court nominee with this lengthy a paper trail behind him. It’s a target-rich environment. This possibly could make opposing his nomination easier. His two-step on special prosecutors should take up the better part of a day’s worth of hearings since it reeks of pure political expedience. And, god knows, he shouldn’t be allowed to use what he wrote in 2009 as an alibi for what he would do if Mueller’s case came before him. Unless Kavanaugh agrees to recuse himself from any such case, nobody should vote for him.

And Kavanaugh is generated from a whole industry set up by right-wing oligarchs designed to pervert and twist the law to their own means. Thid tweet is one of many I saw along these lines when Kavanaugh's appointment was announced.

SCOTUS nominee finalists have me thinking about the tremendous affirmative action for conservatives in the legal profession — so blatant a prof of mine told everyone to shift as far right as they could to help chances at good clerkships, etc

— Alexandra Brodsky (@azbrodsky) July 9, 2018

Which makes it all the more disgusting that these guys want to end affirmative action for other groups.

Put this kind of "ideology over facts and reality" thought on the bench, and it helps explain how we've ended up with the following legal absurdities.

Online bullying and creating a hostile work environment is OK as long as you claim it is “academic freedom.”

Money-laundering and hiding the name of donors is OK as long as you claim that it is being done in the name of “free speech" (Scott Walker's John Doe case), but the right for workers to organize and make their demands as a group is not free speech.

Bullying and calling for repression and violence against a group of less-powerful people is protected, but when people respond to that by calling BS on those hateful people, the bullies whine and claim THEY'RE the ones being repressed ("Bad people on both sides").

And rule of law and constitutional protections can be thrown out for our most vulnerable citizens, but can be abused by those at the highest levels of power, to the point where someone like Brett Kavanaugh claims a president is literally above the law.


These right-wing BubbleWorlders think they do not have to show one shred of decency and are immune from any accountability for their words and actions. And they call US the self-absorbed snowflakes? This has to change, and they have to neutered and removed. NOW.