Kavanaugh’s Disqualifying Flaw

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Yesterday, much of the country was riveted to their televisions, or other devices, watching the testimony of Christine Blasey Ford and Brett Kavanaugh before the Senate Judiciary Committee. I went a number of places last evening and this was all anyone could talk about. The ostensible issue is whether Kavanaugh, President Trump’s Supreme Court nominee, committed a sexual assault on Ford in 1982 as she claims. The larger and more important issue is what kind of person should serve on the Supreme Court.

Unfortunately, the way the inquiry was set up we are really unable to determine whether Kavanaugh did it. The Senate Judiciary Committee is not a court of law. The devices we have honed over centuries for finding the truth, notably compelling witnesses to testify and then cross-examining them, were not used. Ford and Kavanaugh each got an opening statement and then were subject to questions from Senators. Republican Senators ceded their opportunity to question Ford to a prosecutor specially retained for this purpose. Ford answered whatever questions were asked of her and seemed to be genuinely trying to help the process. Kavanaugh was combative, answering the questions from “friendly” interrogators but arguing with Democratic Senators and frequently interrupting them. Committee Chairman Charles Grassley ran the proceeding as a political spectacle not a trial.

Republican Senators were upset that Kavanaugh has been put in this position. They repeatedly questioned the motivation of Ranking Member Diane Feinstein for holding onto Ford’s letter, in which she initially raised the allegation, until after Kavanaugh’s vetting process had nearly gotten to its end. They might have a legitimate point about this, but that point doesn’t go to whether Kavanaugh is actually guilty of sexual assault or whether he is appropriate for the Supreme Court. Instead it simply complains about the partisan behavior that pervades everything these days, of which the Republicans are equally guilty.

To be fair about this, I confess I don’t know whether Kavanaugh did it. Each witness was 100% certain that his or her own story was correct and the other’s was wrong. Ford’s testimony was compelling.  She did not say or behave in any way that suggests she is making the story up or that she has a political axe to grind. After all, the letter in which she raised the allegation against Kavanaugh was written at the point when Kavanaugh was one of several on Trump’s list for consideration and before he was actually nominated. She had nothing to do with the manner in which the allegations were brought forward by Feinstein and the Democrats. In fact, she asked for confidentiality and is as much a victim of the circus as Kavanaugh. There are holes in her recollection but she didn’t try to fill them in to make the story better or more complete.

Kavanaugh’s anger and emotion were also genuine, which perhaps suggests that he is telling the truth as he believes it. He repeatedly pointed out that the three other people whom Ford says were present at the party cannot confirm it took place. He presented a calendar from high school in which he listed the places he planned to be and showed how after these events he wrote in who had been present. There is no meeting or party listed of the sort that Ford alleges. He also pointed to a lot of women who would attest to his character, although this kind of evidence is rarely allowed in court because how one behaves in other circumstances is not proof that he acted in the same way in the circumstance in question.

There are a number of other things that could be said for and against the stories of Ford and Kavanaugh. But we are not going to get any other facts or testimony because the Republicans are resisting the call of the Democrats for an FBI investigation of the allegations. They feel this is just a ploy on the part of the Democrats to delay the vote on the nomination until after the mid-term elections in November. Perhaps they can now understand the Democrat’s fury at the refusal of Mitch McConnell to bring forward President Obama’s nominee Merrick Garland until after the 2016 election.

In any event, if the objective is to find the truth then more information rather than less is appropriate. Kavanaugh, who has been a federal judge for twelve years, repeatedly dodged the question of whether he wanted an FBI investigation. Clearly, if such an investigation provided no corroboration for Ford, then Kavanaugh would sail through the nomination vote. Instead, it almost looks like he and the Republicans are afraid of what would be learned if the FBI interviewed Mark Judge and others. So I don’t think the Republicans are interested in the truth so much as getting their nominee across the line. And maybe Democrats really don’t care as much about the truth as preventing this.

Even Chairman Grassley conceded that if Ford’s allegations are true it would be disqualifying for Kavanaugh. Nobody disputed this. Yet after yesterday’s hearing any honest broker would have to say that it is possible they are true – that Kavanaugh actually committed the sexual assault. I think the real question the full Senate will confront is whether we are prepared to put someone onto the Supreme Court for life about whom there is this much doubt. Do we care about the integrity of the Supreme Court or not?

For me there is an easier way out of this quagmire. In my view Kavanaugh disqualified himself yesterday when he forcefully claimed that he is the victim of unjust character assassination by the Democrats on the Judiciary Committee who only want revenge “for the Clintons.” This is a glimpse into the way Kavanaugh views the world and it is not pretty. The Democrats did not concoct the allegations against him. The Democrats were not the ones seated in front of the Committee telling a believable story of sexual abuse by laughing frat boys. Yet Kavanaugh filters this as something insidiously partisan. Keep in mind that this is a man who evaluates disputes for a living, but when the dispute involves him he sees nothing but a nefarious plot by his political foes. His mode of thinking and his combative way of presenting it speak volumes about how fair and even handed he could be on the Supreme Court. You can bet that as a Justice he would scorch Democrats and their concerns as his own revenge. The Senate proceeding was not perfect as a truth finding process, but the stress it created exposed Kavanaugh’s disqualifying flaw.

SNAP Benefits, Work Requirements and West Virginia’s Hungry

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The Supplemental Nutrition Assistance Program (SNAP) is the centerpiece of the nation’s food security safety net. In FY 2016 SNAP benefits, formerly called food stamps, provided $500 million in nutrition assistance to low income West Virginians. On average, 358,000 West Virginians received benefits each month, roughly 20% of our population. These benefits amount to about $1.29 per meal. Yet our state government seems determined to cut recipients from the SNAP rolls.

Governor Justice recently signed a law making it more difficult for under-employed individuals to receive SNAP benefits.  This new law (HB 4001) was promoted by Republicans in the Legislature using the old “welfare Cadillac” myth about recipients taking advantage of public benefits. HB 4001 will have the effect of reducing the number of SNAP recipients among the vulnerable low-wage population.

Furthermore, the 2018 federal Farm Bill pending in Congress might do much the same. The U.S. House version of the Farm Bill, which would restrict current SNAP eligibility rules, barely squeaked by in the House on a vote of 213-211. House leadership had to rely entirely on Republican votes, the first farm bill in history to pass either chamber with only one party in support. The Senate, which passed its own version, is willing to be more generous than the House. SNAP eligibility is the most contentious issue facing House and Senate conferees.  The harsh House approach was favored by West Virginia Congressman Alex Mooney for the emptiest of reasons.

West Virginia Governor Jim Justice

West Virginia Governor Jim Justice

To receive SNAP benefits an individual can have gross monthly income of no more than $1,307 and a family of four no more than $2,665. These figures are 130% of the federal poverty level. In addition, there are work requirements for eligibility, first imposed in 1996. An able-bodied adult without dependents (ABAWD) can only get SNAP benefits for three months in a three year period unless he or she meets the work requirements. This is called the time limit. An ABAWD must work at least 80 hours per month or participate in a qualifying training activity to avoid the time limit.

Federal law allows states to apply for a waiver of the time limit for ABAWD individuals in areas where it is more difficult to find work than in more prosperous areas of the country.  In West Virginia this has been done broadly on a county by county basis and many counties have routinely received waivers.  The waivers are largely responsible for the broad availability of SNAP benefits in the state. But HB 4001 will put a stop to these waivers. No West Virginia county will be allowed a waiver for any reason after October 1, 2022.

I am interested in eliminating fraud as much as the next person. But the waiver elimination in HB 4001 isn’t directed at fraud. Instead it is directed at people who are presumed to be lazy and unwilling to work, and who thereby take advantage of federal benefits. In this way HB 4001 creates a moral test of personal responsibility to receive assistance irrespective of need. It isn’t even a matter of saving West Virginia taxpayers money. SNAP benefits are entirely paid for by federal money, and every dollar in these benefits results in $1.80 in total economic activity in the state. So cutting people from SNAP benefits will actually hurt our economy.

Nevertheless, the lead sponsor of HB 4001, Del. Tom Fast (R-Fayette) told the Huntington Herald-Dispatch that the various features of the bill were designed to weed out “those who do not truly need assistance”:

I have consistently heard people just in conversation make complaints of seeing people purchase things with [a SNAP debit card] – luxury-type items – using the cards and then going out and getting in a luxury SUV. It is something I hear not just in my district but in areas all around the state.

This is certainly not what you would call empirical proof on which public policy should be made. Yet our Jefferson County Delegates — all Republican — didn’t seem to be bothered by the lack of proof. Delegates Paul Espinosa, Riley Moore and Jill Upson all voted in favor of HB 4001.

HB 4001 is just one more measure imposed by the conservative “personal responsibility” crowd without inquiring whether there might be some reasons other than lack of responsibility why a SNAP recipient might be unable to work twenty hours per week. Most of these people actually are working, but in jobs with low-pay, inconsistent schedules and unstable futures. The West Virginia Center on Budget and Policy adds that lack of access to transportation, undiagnosed mental illness, a criminal record from a past mistake, or living in an economically devastated part of the state are also plausible explanations. Unfortunately these explanations have also not been empirically validated.

But the Brookings Institution has looked at the question in a serious way in connection with the 2018 federal Farm Bill. Their research found that one in five adults in the ABAWD category switches between working more than 20 hours per week to a different employment status, such as working less than 20 hours per week, seeking employment, or being out of the labor force. For those in the labor force, work-related reasons – not being able to find work, being laid off, or working more than 15 hours for no pay at a family business or farm – were the most frequent explanations. Because only those working more than 20 hours per week every month would be eligible to retain their SNAP benefits, Brookings estimated that nearly 80% of ABAWD individuals would be exposed to potential SNAP benefit loss.

One other study came to a similar conclusion. In May 2016 the Department of Health and Human Resources did an experiment in the nine West Virginia counties with the lowest unemployment rates. The experiment explored what would happen if there were no possible waivers of the time limit — exactly the effect of HB 4001.  In the experiment ABAWD individuals strictly lost SNAP benefits unless they found 80 hours per month of employment or were participating in a work training or community service activity. While 5,417 people were cut from the SNAP rolls in the nine counties, DHHR reported that the experiment did not significantly improve employment figures for the ABAWD group. While the results of this experiment were available to the West Virginia Legislature before it adopted HB 4001, the results came to an inconvenient conclusion and were therefore ignored.

In a separate but predictable outcome during the experiment, demand for meal service at private soup kitchens increased 25% in Cabell, one of the nine pilot counties. This simply demonstrates that even though many of the hungry won’t be assisted by government benefits under HB 4001, they will still be hungry. The burden of feeding them will not disappear but rather will fall to private organizations.

Congressman Alex Mooney

Congressman Alex Mooney

Meanwhile the drama concerning the 2018 Farm Bill continues. The House version would impose increasing periods of disqualification each time an under-employed person failed to meet the work requirements. This feature and others are predicted to result in 400,000 households losing benefits. The Congressional Budget Office estimates that by 2028 the House version would lower the SNAP caseload by about 1.2 million people.  Congressman Alex Mooney, who has probably never experienced real hunger in his life, said that the “conservative” SNAP reform provisions led to his support for the Farm Bill. In a spectacular non sequitur, Mooney said that “because farmers work long hours to produce food for the nation, so should program recipients.” His analysis on this, as on other matters, is about a quarter-inch deep.

It is certainly time that we stopped blaming the poor for their own misfortune. Hunger and food insecurity are not things people voluntarily choose. Moreover, cutting people off SNAP benefits harms the entire state because we would lose millions in federal benefit dollars that circulate in our economy. Regrettably, however, unsophisticated and uncharitable attitudes toward poverty and hunger dominate the majority party in Charleston and in Washington.