Why Kavanaugh had to be approved, and it’s not what you thought

The accusations regarding Brett Kavanaugh’s fitness to be a Supreme Court judge were disgusting. But they overshadowed two other significant matters. The first, which has received some publicity, is a court case scheduled to be heard by SCOTUS in November, one in which our president has a particular interest. The Court will hear the question of “dual sovereignty.” Most people confuse this with “double jeopardy,” the right not to be punished for the same crime after a valid conviction or acquittal.

However, courts have repeatedly found that a person may be charged in different jurisdictions for the same crime, most often by the federal government and then by a state. To quote from the Supreme Court filing in this case:

“Each sovereign is entitled to “exercis[e] its own sovereignty” to “determin[e] what shall be an offense against its peace and dignity” and prosecute the offender “without interference by the other.” Under petitioner’s interpretation of the Double Jeopardy Clause, one sovereign’s efforts (successful or not) to enforce its own laws would vitiate the other sovereign’s similar law-enforcement prerogatives. But that cannot be squared with the Constitution’s bedrock structure of governance.”

In other words, the government argues that it was the intention of the Founding Fathers to permit the states to enforce their own laws, whether or not the federal government had charged someone for the crime under discussion. The plaintiff’s attorneys (along with many law scholars) argue that little evidence exists that the Founding Fathers intended any such thing, nor is it hinted at in the Constitution.  Instead, they say, when SCOTUS ruled that the double jeopardy clause of the 14th Amendment applied equally at state level, that decision undermined any justification for dual-sovereignty procedures.

United States v. Grimes, 641 F.2d 96, 101–02 (3d Cir. 1981). To the contrary, the logic of incorporation is incompatible with such an exception. “Whenever a constitutional provision is equally enforceable against the state and federal governments, it would appear inconsistent to allow the parallel actions of state and federal officials to produce results which would be constitutionally impermissible if accomplished by either jurisdiction alone.”

The case now before the Supreme Court (United States v Gamble) is a direct challenge to the precedent of dual sovereignty. Finding for the defendant would make it impossible for one level of government to charge a person with a crime if that person had a valid conviction or acquittal for the same crime at a different level. I think most people would find this reasonable.

However, as in everything else, there are unintended consequences. It also means that if the president pardons a person after a federal conviction, he or she has essentially gotten away with the crime. They are freed from punishment at the federal level and can not be pursued at any other level. Given the president’s threat to pardon any crony convicted of a federal crime, it’s not hard to see why it was so important to get Brett Kavanaugh on the Supreme Court.

At the same time, however, it seems likely that the case will be decided based on many factors, and that the partisan composition of the court should make little difference. So why the unprecedented haste in approving Kavanaugh?

If you live in Oklahoma or are intimately involved in the petroleum industry, you may have guessed why the administration wants a friend on the court. Another case will be heard on November 27, whose implications go far beyond dual sovereignty. This is Royal v Murphy, and it involves a man currently on death row for a murder committed in 1999. No one argues that he didn’t commit the murder. His lawyers, however, pursued an interesting approach in their appeal. Patrick Murphy is a Creek Indian. He murdered another Creek man on land within the previously acknowledged borders of the Creek Nation. Therefore, according to his attorneys, the state of Oklahoma had no jurisdiction to prosecute him—he should have been charged in federal court. The argument hinges on whether the Creek Nation’s reservation was ever officially dissolved by the Congress of the US, the only governing body which can do so. And it appears that it was not.

As one might imagine, this has ramifications far beyond the future of Patrick Murphy, who is unlikely to ever be turned loose on the streets no matter how the case is settled. A return to 1866 boundaries for the Creek Nation would put a substantial percentage of the state of Oklahoma, including half of the city of Tulsa, on Indian property. I’m amazed that there has been so little publicity about the case, in fact.

The US government has publicly portrayed the possible outcome in exaggerated language, but on the other hand, has been curiously inept in its handling of the case. For example, after a three-judge panel of the 10th Circuit Count in Oklahoma ruled in favor of Murphy, the federal government petitioned for a new hearing before the full court, claiming that the decision could require it “to investigate and prosecute hundreds (or even more than a thousand) new cases every year, increasing its caseload by a factor of ten or more.” An amicus brief filed on behalf of the Muscogee (Creek) Nation points out that a tenfold increase would exceed 2,000 filed cases annually. However, the total number of Indian country cases filed nationwide in 2015 was 2,635 [1]. “Unless,” the brief concludes, “Indians on the Creek Reservation will commit crimes receiving federal attention at a vastly higher rate than Indians nationwide, the unsubstantiated numbers advanced in its brief amount to pure hyperbole.”

So they do, and it doesn’t take a law degree to reach that conclusion. Whoever made that claim must certainly have known it as well. The only other conclusion is that the person didn’t even bother to check on the overall number of cases, which suggests a lack of competence—or more likely, a lack of interest. After all, who in his right mind would assume that any portion of the great state of Oklahoma might still–gasp!–belong to its original inhabitants?

Other points made by the federal government in the petition to rehear en banc are equally puzzling. For example, it claimed that the alleged increased case load would burden the “single full-time federal district court judge who sits in the Eastern District of Oklahoma.” Except that the Eastern District Court has three district judges, not one (as well as two magistrates.) How much research would it have taken to discover that fact?

In the interest of brevity, I won’t go into all the contradictory and erroneous claims—links to several of the briefs filed in the case are listed below. My point is that attorneys for the government clearly didn’t do a very good job either in the original filing or in the petition for rehearing. Why? They had access to the same material as the plaintiff’s attorneys, had they done the work to uncover it. The inescapable conclusion—for me, at least—is that they didn’t think it was worth any more time than they put into it, that no one in his right mind would find for the plaintiff in this case. Unfortunately for them, the panel ruled that Congress indeed never officially disestablished the Creek Nation reservation and that its 1866 borders are still valid. Therefore, Patrick Murphy’s crime was committed on Indian property and should have been prosecuted by the federal government, not the state of Oklahoma. The petition for rehearing the case in full district court was denied, and it is now before the Supreme Court (petition for a writ of certiorari filed Feb 6, 2018) [2,3]

Here’s where it gets interesting. One of the 10th District Court judges on the original panel was Neil Gorsuch, the first justice nominated to the Supreme Court by President Trump. Because of his prior involvement, he has properly recused himself from this case. Without a replacement for retired Justice Kennedy, that left the court in a troubling condition for a Republican president: three liberals (Ginsburg, Sotomayor, Kagan), only two reliable conservatives (Chief Justice Roberts and Samuel Alito), one moderate (Stephen Breyer), and Neil Gorsuch, whose experience with Indian affairs might have provided an invaluable contribution to the court’s reasoning, but who was not going to participate. Suddenly, all prior assumptions about this case had to be thrown out, and it could not be assumed that SCOTUS would find for the federal government (or rather for Terry Royal, Warden of the state prison where Patrick Murphy is being held, and the named plaintiff). So…enter Brett Kavanaugh, whose record on Indian affairs, by the by, is not good.

That’s bad enough, but there is more. Lisa Blatt, a self-described “liberal feminist lawyer,” supported Kavanaugh for the position, and introduced him as Trump’s nominee. Her unconditional endorsement in Politico cited his having met her criteria as “well-qualified, brilliant, has integrity and is within the mainstream of legal thought.” One might wonder how, as the mother of a teenage girl, she also blithely stated that she had “no insight into his views on Roe v. Wade” but apparently trusts that “whatever he decides on Roe, I know it will be because he believes the Constitution requires that result.” [4] The accusations of his treatment of other teenage girls and young women apparently did not trouble her either. But other goals may have had greater priority, as outlined below.

Blatt knew Royal v Murphy would come before the Supreme Court in November because she will argue for the plaintiff. That’s right—the attorney whose gushing support of Kavanaugh helped secure his appointment just before a case in which he may cast the deciding vote will herself be the one to argue the case before him. It seems unlikely that personal influence would change his vote on this case even if she were appearing for the defense. Yet it is still an uncomfortable juxtaposition of facts and events, upsetting the norm of at least attempting to appear impartial.

Others have adequately made the point that Lisa Blatt, liberal Democrat or not, routinely argues cases for which large corporate clients pay her employer large amounts of money [5]. An advocate of individual rights she typically is not. Nor is her record in Indian cases anything to brag about. In 2013, she represented a South Carolina couple who adopted a child from the girl’s biological mother, an Oklahoma Indian. Blatt was able to persuade the court that because the child’s father gave up parental rights before her birth, the Indian Child Welfare Act did not apply. The case brought up a wide array of tribal versus personal rights that are still being discussed, and should be.

My gripe is not with Blatt’s argument that the child should remain in the only home she had ever known (she was four years old at the time). It is with her attempt (along with the other plaintiffs’ attorneys) to extract payment of legal costs from the child’s father and the Cherokee Nation, after representing this as a pro bono case. Moreover, a November 2013 article in Indian Country Today points out that an out-of-court settlement was attempted, but that such a settlement “would have left counsel for the Adoptive Couple without any chance of recovering any of the one million dollars in fees and expenses they now claim.”[6] To me, the move smacks of all the power plays the rich and powerful can make against an individual: “Get in our way,” it says, “and we’ll make you regret it.” Given the total absence of information on the outcome, I can only conclude that the suit was quietly dropped. But the threat remains, and online Indian forums argue over whether it’s safe to get involved with similar cases.

In 2015, Blatt argued for and won the right of the Washington Redskins football team to retain its trademark while argument proceeded in court on a similar case (Matal v Tam, 582 U.S. __(2017)). The case eventually went to the Supreme Court, which ruled that trademark law barring disparaging terms infringes on free speech rights. Shortly thereafter, the Justice Department dropped its suit against the NFL team, and their canceled trademark registration was reinstated.

Regardless of the individual merits of either of these cases, one sees the trend. When issues affecting Native American tribes or individuals conflict with those of almost anyone else, the pattern of three centuries prevails. Sadly, I suspect that Royal v Murphy will be one more of those. Watch this space for more.

1. Amicus Curiae Muscogee (Creek) Nation Brief in Opposition to Petition for Rehearing en banc

2. Petition of a Writ of Certoriari to the United States Court of Appeals to the 10th Circuit Court

3. Amicus Curiae Brief filed by Solicitor General Noel J. Francisco

4. “I’m a Liberal Feminist Lawyer. Here’s Why Democrats Should Support Judge Kavanaugh,” Lisa Blatt, August 2, 2018, Politico

5. Why Is Lisa Blatt Endorsing Brett Kavanaugh?, Mark Joseph Stern, September 4, 2018, Slate

6. Cherokee Nation Files Forceful Response to Capobiancos’ $1 Million Attorneys’ Fees Suit




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