Friday, September 7, 2018

Brett Kavanaugh and the Unitary Executive Theory

By Leland Ware

Brett Kavanaugh, President Trump's nominee to replace Justice Anthony Kennedy on the Supreme Court, is currently a judge on the D.C. Court of Appeals. If confirmed he would have the second most conservative score on the bench next to Justice Clarence Thomas according to a measure that scores judges on a liberal-conservative spectrum. Kavanaugh would join John Roberts, Samuel Alito andNeil Gorsuch to form a solidly conservative majority.
An immediate concern is whether he would vote to uphold U.S. v. Nixon. In a unanimous 8-0 decision, the Court rejected President Richard Nixon’s efforts to disobey a subpoena issued during the Watergate investigation. “Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications…can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances,” Judge Kavanaugh has stated a different interpretation of those events. In a 1999 interview, he argued that the landmark Watergate tapes case may have been “wrongly decided” due to the “tension of the time.”
In a 2009 Minnesota Law Review article Kavanaugh wrote that Congress should, by statute, provide that a sitting president could neither be sued, indicted, tried, investigated or even questioned by prosecutors while in office. “Having seen first-hand how complex and difficult that job is, I believe it vital that the president be able to focus on his never-ending tasks with as few distractions as possible,” he wrote. “The country wants the president to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office.”

In a recent case Kavanaugh was part of an appellate panel that found the structure of the Consumer Financial Protection Bureau to be unconstitutional. Kavanaugh reasoned the Constitution gives all “executive” power to the president. Independent agencies such as the CFPB, he wrote, are “a headless fourth branch of the U.S. Government” that pose “a significant threat to individual liberty and to the constitutional system of separation of powers.”

Kavanaugh relied on Justice Antonin Scalia’s dissent in Morrison v. Olson, the 1985 Supreme Court ruling that upheld the constitutionality of the Independent Counsel Act. Scalia’s dissent in Morrison explained what is known as the “unitary executive theory,” which holds that the president has almost unchallenged powers over the executive branch and its functions.

George W. Bush relied on that theory to justify warrantless eavesdropping on American citizens' phone calls and emails, despite a statute banning the practice, and to override the Detainee Treatment Act of 2005, with its absolute prohibition on "cruel, inhuman, or degrading treatment or punishment” of prisoners such as “waterboarding” and torture. 

There is no reason to believe that, on issues ranging from health care to consumer and labor rights to the Second Amendment, Kavanaugh’s votes and opinions will be anything but conservative, much more so than Anthony Kennedy’s. It is easy to understand why Trump wants him on the Court.

Leland Ware is the Louis L. Redding Chair and Professor of Law at the University of Delaware.

Wednesday, August 29, 2018

Pulitzer-winner Hank Klibanoff headlines 50th Anniversary Celebration of Lillian Smith social justice book awards

ATHENS, GA -- Pulitzer-prize winner Hank Klibanoff will be the featured speaker Sept. 25 at the celebration of the 50th anniversary of the Lillian Smith Book Awards.

This celebration will commemorate a half-century tradition, currently a collaboration of the Southern Regional Council, the University of Georgia Libraries, Piedmont college, and the Georgia Center for the Book, of recognizing authors whose books represent outstanding achievements demonstrating through high literary merit and moral vision an honest representation of the South, its people, its problems, and its promise.

The program, open free to the public, begins at 6:30 p.m. at the National Center for Civil and Human Rights in Atlanta. A reception will follow.

Klibanoff will speak on “Courage, Cowardice and, Now, Contrition,” which will draw on his book, The Race Beat: The Press, the Civil Rights Struggle, and the Awakening of a Nation; the Georgia Civil Rights Cold Cases class Klibanoff leads at Emory University; and the podcast, Buried Truths, which he hosts and WABE produces.

 “The writings of Lillian Smith are as relevant today as they were more than 50 years ago when she was a surprising and surprisingly vocal champion of social justice and civil rights,” said Charles Johnson, chair of the Southern Regional Council, which began the annual book awards in 1968. “We are excited to have Mr. Klibanoff join us in this observance as his work ably continues ‘Miss Lil’s’ efforts to shine a light on injustice.”

The Race Beat won the 2007 Pulitzer Prize in History and tells “the story of how America awakened to its race problem, of how a nation that longed for unity after World War II came instead to see, hear, and learn about the shocking indignities and injustices of racial segregation in the South--and the brutality used to enforce it.

“It is the story of how the nation's press, after decades of ignoring the problem, came to recognize the importance of the civil rights struggle and turn it into the most significant domestic news event of the 20th century,” according to the Pulitzer organization webpage.

Klibanoff is currently a professor in the creative writing/non-fiction program at Emory University. He directs the Georgia Civil Rights Cold Cases Project at Emory ( and is the creator and narrator of Buried Truths, a narrative history podcast available on

“We can learn, interpret and give life — and historical context and meaning — to their important stories. The stories of who they were are the stories of who we are,” Klibanoff said of the Cold Cases Project.

“Buried Truths” is a six-episode podcast allowing viewers to experience “what Klibanoff’s students have — the chance to revisit Georgia’s sordid racial and judicial past and see all of the white men and women in the pages of history who sat on the sidelines, watching it all happen and doing nothing.

“Who were we as a people that we allowed this to happen? That’s the question we always have to ask ourselves,” says Klibanoff. “That’s always worth asking. Can I be a bystander on this, or do I need to engage?”

WRITER/CONTACT: Jean Cleveland,, 706.542.8079

Sunday, July 29, 2018

The Southern Regional Council Announces the Lillian Smith Book Award Recipients for 2018

Atlanta - Two exceptional books will be recognized with this year's Lillian Smith Book Awards. These awards were established by the Southern Regional Council (SRC) to recognize authors whose books represent outstanding achievements demonstrating through high literary merit and moral vision an honest representation of the South, its people, its problems, and its promise.

This year's Awards Ceremony is a partnership between the Southern Regional Council, the University of Georgia Libraries, and the Georgia Center for the Book. It will be presented in connection with the Decatur Book Festival at the DeKalb County Public Library in Decatur, Georgia on Sunday, September 2, 2018 at 2:30 p.m.

The 2018 Award Recipients are:

Locking Up Our Own: Crime and Punishment in Black America

By James Foreman, Jr.

                            LOCKING UP OUR OWN by James Forman Jr.A sharp analysis of how African-Americans, due to “profound levels of pain, fear, and anger” over crime and violence in their neighborhoods, have helped shape U.S. policies leading to mass incarceration.

In this candid, readable account, Forman, a former Washington, D.C., public defender and current professor at Yale Law School, shows how our nation has gotten to the point where so many citizens—primarily blacks—are imprisoned. Surveying the recent history of race, crime, and punishment, the author, son of civil rights pioneer James Forman, argues that mass incarceration has developed incrementally as a result of national campaigns and federal actions as well as of “mundane” local decisions made around the nation. With a focus on majority-black D.C., where he represented criminal defendants and co-founded a charter school for school dropouts, Forman traces the rise of drug addiction and criminality, the resulting widespread fear in black neighborhoods, and the demands in the 1980s for “tougher criminal penalties” that set “a national precedent for punitive sentencing.” Most people punished under policies to combat drugs and guns, he writes, have been “low-income, poorly educated black men.” Especially insightful are Forman’s discussions of the rise of black policing in the 1960s (“a surprising number of black officers simply didn’t like other black people—at least not the poor blacks they tended to police”), the “hostile, unforgiving mindset” that prompted “warrior policing” during the 1980s crack epidemic, and the practice of “pretext policing,” in which routine traffic stops are used to seek evidence of criminal activity, especially in ghetto areas. Writing with authority and compassion, the author tells many vivid stories of the human toll taken by harsh criminal justice policies. He also asks provocative questions—e.g., what if the D.C. drug epidemic had been treated as a public health issue rather than a law enforcement problem?

Certain to stir debate, this book offers an important new perspective on the ongoing proliferation of America’s “punishment binge.”

Democracy in Chains: The Deep History of the Radical Right's Stealth Plan for America, Viking/Penguin Books

By Nancy McLean

Democracy in Chains by Nancy MacLeanNancy MacLean is the author of "Democracy in Chains: The Deep History of the Radical Right's Stealth Plan for America." She is a professor of history at Duke University.

This book explores the philosophies and strategies that animate those on the political right. University of Virginia economist James M. Buchanan provided the blueprint for the libertarian movement.

MacLean says her research uncovered the operation that he and his colleagues designed over six decades to alter every branch of government to limit participatory democracy through Constitutional means.

She says Buchanan's argument was "if you don't like the outcome of public policy over the long term, don't think about changing the rulers, but think about changing the rules."

MacLean concludes that "what we're seeing today is very much akin to the 1860s and the 1930s in terms of a very determined and powerful group of people who are hostile to democracy, as the Confederacy was, and the American Liberty League was in the 1930s, and they are moving along very successfully."

SRC was founded in 1919 to combat racial injustice in the South. SRC initiated the Lillian Smith Book Awards shortly after Smith's death in 1966 to recognize authors whose writing extends the legacy of the outspoken writer, educator and social critic who challenged her fellow Southerners and all Americans on issues of social and racial justice. Since 2004 the awards have been presented by SRC in a partnership with the University of Georgia Libraries, whose Hargrett Rare Book and Manuscript Library houses a historic collection of Lillian Smith's letters and manuscripts. The Georgia Center for the Book became a partner in 2007, when the awards ceremony first became part of the Decatur Book Festival. Piedmont College, which operates the Lillian Smith Center, joined as a sponsor in 2015.

The 2017 Lillian Smith Book Awards were The Firebrand and the First Lady by Patricia Bell-Scott and Vagrant Nation by Risa Goluboff. 

Join us for the 2018 Award Ceremony
DeKalb Public Library, Downtown Decatur Branch
Sunday, September 2nd
2:30 p.m.