The Supreme Court turned away an appeal on Monday brought by a man who faces the very real possibility of being tortured to death. Missouri intends to execute Ernest Johnson, who was sentenced to death in 1994, using pentobarbital; due to Johnson’s unique medical condition, the drug may inflict excruciating agony as he dies. Just two years ago, the court’s conservative majority—including, most prominently, Justice Brett Kavanaugh—suggested that an inmate in this exact situation could demand a different, less painful execution.
Johnson did precisely what Kavanaugh asked, asking that Missouri kill him by firing squad instead of lethal injection. Yet Kavanaugh and his five conservative colleagues ignored his plea on Monday, condemning Johnson to a death that may be violent and prolonged. In her pointed dissent, Justice Sonia Sotomayor highlighted her colleague’s perverse retreat from his earlier promise. It appears that Sotomayor, like Justice Elena Kagan, is fed up with Kavanaugh’s habit of posturing as a moderate, then voting like a reactionary. When the stakes are low, Kavanaugh knows how to sound like a reasonable, empathetic centrist. But when an actual person’s rights are on the line, Kavanaugh’s vote is nowhere to be found.
Johnson v. Precythe, the case that SCOTUS swatted away on Monday, constitutes yet another challenge to the grisly impact of lethal injection on the human body. In 2008, Johnson—who was convicted of murder and sentenced to death in 1994—underwent brain surgery to remove a tumor. In 2008, doctors removed about 20 percent of his brain tissue, causing severe scarring that left a brain defect. They did not eliminate the entire tumor. This trauma to Johnson’s brain, combined with remaining tumor cells, triggered epilepsy. Missouri now wants to kill him using pentobarbital, but the drug both triggers seizure and exaggerates sensations of pain. In 2016, Johnson alleged that lethal injection would therefore trigger a massive seizure and inflict an unconstitutional amount of pain, and initially asked that Missouri execute him using nitrogen gas instead.
This request was not far-fetched, since Missouri law explicitly authorizes the use of nitrogen gas in executions. In 2019’s Bucklew v. Precythe, however, the Supreme Court ruled that Missouri’s death row inmates could not demand death by gassing as an alternative to lethal injection. The court’s conservative majority held that gassing was not a viable option because it could not be “readily implemented” and had “no track record of successful use.”(Missouri’s neighbor Oklahoma currently uses gas for executions, as have many other states throughout history.) In short, Missouri did not want to figure out how to gas its prisoners, and the Supreme Court would not force it to learn. A state’s refusal to adopt new methods of execution can justify torture.
Bucklew was a brutal decision that was made possible by Justice Anthony Kennedy’s retirement. Kennedy served as a moderating force on Eighth Amendment issues, often limiting the scope of conservative decisions on capital punishment. And, indeed, shortly before he retired, Kennedy cast the deciding vote in a 5–4 decision staying the execution at issue in Bucklew. By the time the court heard arguments in the case, though, Kennedy had retired. It seems his hand-picked successor, Kavanaugh, was content with Bucklew’s extremism, since he joined the majority.
While Kavanaugh did not moderate Bucklew from a legal perspective, he did deploy a rhetorical smoke screen to make the decision sound less cruel. The justice wrote a concurring opinion to “underscore” an “additional holding” of Bucklew that favored capital defendants, one that “all nine Justices today agree on.” Yes, an inmate must present an alternative method of execution to avoid torturous lethal injection, the justice wrote. But, he added, “the alternative method of execution need not be authorized under current state law—a legal issue that had been uncertain before today’s decision.” Thus, there is “little likelihood” that an inmate will not be able to identify a feasible alternative. Kavanaugh also pointed out that Missouri had even conceded, at oral argument, that inmates could request a firing squad, even though that method is not authorized by state law.
Kavanaugh’s concurring opinion in Bucklew set out a clear path for Johnson. He could no longer demand death by nitrogen gas. But he could ask for death by firing squad, as the state itself admitted before the Supreme Court. So he tried to amend his complaint to plead death by firing squad as an alternative to lethal injection. Then he ran into a roadblock at the 8th U.S. Circuit Court of Appeals. According to the 8th Circuit, Johnson’s request came too late; he should have requested a firing squad earlier, before Bucklew came down, and before SCOTUS gave him a legal basis to do so.
How could that be? As Kavanaugh explained, Bucklew marked the first time the Supreme Court declared that capital defendants could request a method of execution that is not authorized under state law. Yet the 8th Circuit did not see it that way. It held that Bucklew did not constitute “an intervening change in law” that would allow Johnson to amend his complaint.
Kavanaugh should have leapt at the chance to correct this holding, which contradicted his own concurrence. But on Monday, he declined the opportunity. His inaction prompted Sotomayor, in dissent, to foreground his broken promise. Sotomayor’s dissent repeatedly cited Kavanaugh’s concurring opinion in Bucklew, quoting from it extensively. It was Kavanaugh, she noted, who explicitly wrote that Bucklew changed the law (which the 8th Circuit denied). It was Kavanaugh who wrote that inmates “in exactly this situation should have little trouble identifying an available alternative.” And it was Kavanaugh who “emphasized” Missouri’s agreement that an inmate could request a firing squad.
Johnson’s “only misstep,” Sotomayor wrote, was “failing to predict Bucklew and address it pre-emptively. He bears no fault for that.” The fault lies with Kavanaugh, who extended the hope of relief, then walked away when Johnson tried to take him up on it.
Deborah Ramirez’s Yale experience says much about the college’s efforts to diversify its student body in the 1980s.
Deborah Ramirez had the grades to go to Yale in 1983. But she wasn’t prepared for what she’d find there.
A top student in southwestern Connecticut, she studied hard but socialized little. She was raised Catholic and had a sheltered upbringing. In the summers, she worked at Carvel dishing ice cream, commuting in the $500 car she’d bought with babysitting earnings.
At Yale, she encountered students from more worldly backgrounds. Many were affluent and had attended elite private high schools. They also had experience with drinking and sexual behavior that Ms. Ramirez — who had not intended to be intimate with a man until her wedding night — lacked.
During the winter of her freshman year, a drunken dormitory party unsettled her deeply. She and some classmates had been drinking heavily when, she says, a freshman named Brett Kavanaugh pulled down his pants and thrust his penis at her, prompting her to swat it away and inadvertently touch it. Some of the onlookers, who had been passing around a fake penis earlier in the evening, laughed.
To Ms. Ramirez it wasn’t funny at all. It was the nadir of her first year, when she often felt insufficiently rich, experienced or savvy to mingle with her more privileged classmates.
The yearbook photo of Deborah Ramirez in The Yale Banner in 1987.
“I had gone through high school, I’m the good girl, and now, in one evening, it was all ripped away,” she said in an interview earlier this year at her Boulder, Colo., home. By preying upon her in this way, she added, Mr. Kavanaugh and his friends “make it clear I’m not smart.”
Mr. Kavanaugh, now a justice on the Supreme Court, has adamantly denied her claims. Those claims became a flash point during his confirmation process last year, when he was also fighting other sexual misconduct allegations from Christine Blasey Ford, who had attended a Washington-area high school near his.
Ms. Ramirez’s story would seem far less damaging to Mr. Kavanaugh’s reputation than those of Dr. Ford, who claimed that he pinned her to a bed, groped her and tried to remove her clothes while covering her mouth.
But while we found Dr. Ford’s allegations credible during a 10-month investigation, Ms. Ramirez’s story could be more fully corroborated. During his Senate testimony, Mr. Kavanaugh said that if the incident Ms. Ramirez described had occurred, it would have been “the talk of campus.” Our reporting suggests that it was.
At least seven people, including Ms. Ramirez’s mother, heard about the Yale incident long before Mr. Kavanaugh was a federal judge. Two of those people were classmates who learned of it just days after the party occurred, suggesting that it was discussed among students at the time.
We also uncovered a previously unreported story about Mr. Kavanaugh in his freshman year that echoes Ms. Ramirez’s allegation. A classmate, Max Stier, saw Mr. Kavanaugh with his pants down at a different drunken dorm party, where friends pushed his penis into the hand of a female student. Mr. Stier, who runs a nonprofit organization in Washington, notified senators and the F.B.I. about this account, but the F.B.I. did not investigate and Mr. Stier has declined to discuss it publicly. (We corroborated the story with two officials who have communicated with Mr. Stier; the female student declined to be interviewed and friends say she does not recall the episode.)
Mr. Kavanaugh did not speak to us because we could not agree on terms for an interview. But he has denied Dr. Ford’s and Ms. Ramirez’s allegations, and declined to answer our questions about Mr. Stier’s account.
Yale in the 1980s was in the early stages of integrating more minority students into its historically privileged white male population. The college had admitted its first black student in the 1850s, but by Ms. Ramirez’s time there, people of color comprised less than a fifth of the student body. Women, who had been admitted for the first time in 1969, were still relative newcomers.
Mr. Kavanaugh fit the more traditional Yale mold. His father was a trade association executive, his mother a prosecutor and later a judge. They lived in tony Bethesda, Md., and owned a second home on Maryland’s Eastern Shore. As a student at a prominent Jesuitall-boys school, Georgetown Prep, Mr. Kavanaugh was surrounded by the sons of powerful Washington professionals and politicians. He was an avid sports fan and known to attend an annual teenage bacchanal called “Beach Week,” where the hookups and drinking were more important than the sand and swimming.
Ms. Ramirez grew up in a split-level ranch house in working-class Shelton, Conn., perhaps best known for producing the Wiffle ball, and didn’t drink before college. Her father, who is Puerto Rican, rose through the Southern New England Telephone Company, having started as a cable splicer. Her mother, who is French, was a medical technician.
Before coming to Yale, Ms. Ramirez took pride in her parents’ work ethic and enjoyed simple pleasures like swimming in their aboveground pool, taking camping trips and riding behind her father on his snowmobile. She was studious, making valedictorian at her Catholic elementary school and excelling at her Catholic high school, St. Joseph.
She and her parents took out loans to pay for Yale, and she got work-study jobs on campus, serving food in the dining halls and cleaning dorm rooms before class reunions.
She tried to adapt to Yale socially, joining the cheerleading squad her freshman year, sometimes positioned at the pinnacle of the pyramid. But Ms. Ramirez learned quickly that although cheerleading was cool in high school, it didn’t carry the same cachet at Yale. People called her Debbie Cheerleader or Debbie Dining Hall or would start to say “Debbie does … ” playing on the 1978 porn movie “Debbie Does Dallas.” But Ms. Ramirez didn’t understand the reference.
“She was very innocent coming into college,” Liz Swisher, who roomed with Ms. Ramirez for three years at Yale and is now a physician in Seattle, later recalled. “I felt an obligation early in freshman year to protect her.”
There were many more unhappy memories of college. Fellow students made fun of the way she dropped consonants when she spoke, but also ribbed her for not being fluent in Spanish. They mocked her knockoff black-and-red Air Jordans. They even questioned her admission on the merits. “Is it because you’re Puerto Rican?” someone once asked her.
“My mom would have preferred me to go to a smaller college — looking back at it, she was right,” Ms. Ramirez said. At Yale, “they invite you to the game, but they never show you the rules or where the equipment is.”
It wasn’t until she got a call from a reporter and saw her account of Mr. Kavanaugh described as “sexual misconduct” in The New Yorker that Ms. Ramirez understood it as anything more than one of many painful encounters at Yale.
Ms. Ramirez also did not see herself as a victim of ethnic discrimination. The college campuses of the 1980s had yet to be galvanized by the identity and sexual politics that course through today’s cultural debates.
Years after graduating, however, she started volunteering with a nonprofit organization that assists victims of domestic violence — the Safehouse Progressive Alliance for Nonviolence, or SPAN. She became a staff member for a time and continues to serve on its board. Gradually she embraced her Puerto Rican roots.
This awakening caused Ms. Ramirez to distance herself from the past. She fell out of touch with one Yale friend — who had asked Ms. Ramirez to be her daughter’s godmother — after the friend’s husband made fun of a book she was reading on racial identity. The husband, a Yale classmate, was one of the students she remembered being at the dorm party that difficult night.
“If I felt like a person in my life wasn’t going to embrace my journey or would somehow question it,” she said, “I just let them go.”
Mr. Kavanaugh’s confirmation hearings were wrenching, as he strained to defend his character after Dr. Ford’s searing testimony. Thousands of miles away, Ms. Ramirez, who was never asked to testify, also found the hearings distressing. Her efforts to backstop her recollections with friends would later be cited as evidence that her memory was unreliable or that she was trying to construct a story rather than confirm one.
Ms. Ramirez’s legal team gave the F.B.I. a list of at least 25 individuals who may have had corroborating evidence. But the bureau — in its supplemental background investigation — interviewed none of them, though we learned many of these potential witnesses tried in vain to reach the F.B.I. on their own.
Two F.B.I. agents interviewed Ms. Ramirez, telling her that they found her “credible.” But the Republican-controlled Senate had imposed strict limits on the investigation. “‘We have to wait to get authorization to do anything else,’” Bill Pittard, one of Ms. Ramirez’s lawyers, recalled the agents saying. “It was almost a little apologetic.”
Senator Sheldon Whitehouse, Democrat of Rhode Island and member of the Judiciary Committee, later said, “I would view the Ramirez allegations as not having been even remotely investigated.” Other Democrats agreed.
Ultimately, Senator Charles E. Grassley, Republican of Iowa and chairman of the Judiciary Committee, concluded, “There is no corroboration of the allegations made by Dr. Ford or Ms. Ramirez.” Mr. Kavanaugh was confirmed on Oct. 6, 2018, by a vote of 50-48, the closest vote for a Supreme Court justice in more than 130 years.
Still, Ms. Ramirez came to feel supported by the very Yale community from which she had once felt so alienated. More than 3,000 Yale women signed an open letter commending her “courage in coming forward.” More than 1,500 Yale men issued a similar letter two days later.
She also received a deluge of letters, emails and texts from strangers containing messages like, “We’re with you, we believe you, you are changing the world,” and “Your courage and strength has inspired me. The bravery has been contagious.”
College students wrote about how Ms. Ramirez had helped them find the words to express their own experiences. Medical students wrote about how they were now going to listen differently to victims of sexual violence. Parents wrote about having conversations with their children about how bad behavior can follow them through life. One father told Ms. Ramirez he was talking to his two sons about how their generation is obligated to be better.
Ms. Ramirez saved all of these notes in a decorative box that she keeps in her house, turning to them even now for sustenance. One person sent a poem titled “What Is Justice” that has resonated deeply with her.
“You can’t look at justice as just the confirmation vote,” she said. “There is so much good that came out of it. There is so much more good to come.”
A few Republicans have managed—really—to work successfully with the president. Here’s what the new speaker could learn from them.
But there’s no formula for successfully negotiating with this mercurial, ad hoc chief executive. Pelosi’s first attempt to do so, an agreement in September 2017 to protect the Dreamers from deportation in exchange for border security funding, fell apart not long after it was announced.
Still, there’s no reason to think Pelosi, or anyone in the nation’s capital, can’t find a way to a win with Trump. Here’s what we’ve learned about the art of making a deal with Trump from the few successful people in Washington who have figured out how to get what they want out of the president.
Convince Him He’ll Be Loved
Trump may want nothing more than to be well-liked and appreciated. The bipartisan criminal justice reform bill seems to have been sold to him as an opportunity to do just that. Versions of the First Step Act, a major reform that liberalizes federal prison and sentencing laws, had floundered in Congress for years. The policy already had support from across the political spectrum—but it needed a Republican president who could provide political cover to bring enough members of the GOP on board.
Trump wasn’t an obvious champion for sentencing reform. He ran a campaign promising “law and order” and selected the tough-on-crime Jeff Sessions as attorney general. Sessions’ Justice Department had issued reports critical of the bill. The president has suggested that convicted drug dealers deserved the death penalty. To get his support, the criminal-justice reformers would need to conduct a conversion.
The evangelist was White House adviser Jared Kushner, who, all accounts say, worked hard to persuade his father-in-law. Kushner met with everyone from members of the Congressional Black Caucus to Koch-funded interest groups to the news media to bolster an already large coalition. It helped that Kushner was able to deliver plenty of groups and individuals on the right.
“I think the broad popularity of the policy was the gateway,” says one of the bill’s advocates, who watched the process at the White House up close. “The president was also given a booklet of dozens of conservative organizations and individuals making supportive statements on the bill to show grassroots political support. And then it took some convincing that law enforcement was on board.”
The last piece proved crucial, because there’s perhaps no interest group Trump cherishes more than law enforcement. The marquee names—the
Fraternal Order of Police, the
International Association of Chiefs of Police, the
National District Attorneys Association—
were enough to get the president on board. With seemingly few people opposed (Tom Cotton, otherwise a devoted Trump ally, the most prominent) and even staunch critics in the media like Van Jones making the trek to kiss Trump’s ring at the White House, Kushner and his partners succeeded in selling Trump on the most important provision of the First Step Act: Mr. President, you will be loved for signing it.
It won’t be easy for Pelosi, but the Democratic speaker may be able to use similar tactics to goad Trump into supporting some bipartisan health-care initiatives. The administration has already begun proposing some form of federal intervention to lower prescription drug prices, while Democrats have long argued that Medicare should negotiate with Big Pharma on bringing down drug costs. Some kind of compromise bill could get the support of both Capitol Hill and the White House. Your older, Medicare-using base will love you for it, Pelosi might tell the president. That would get his attention.
Remind Him of His Campaign Promises
Earlier this month, Trump and Kentucky Senator Rand Paul were having one of their frequent conversations about the American military presence in both Syria and Afghanistan. Paul, a persistent, longtime critic of the continued deployment of troops in the Middle East, has found the strongest ally of his political career on the issue with Trump.
After their discussion, Paul sent the president some news articles supporting his view that the time was right to withdraw from Syria, says top Paul aide Doug Stafford, who says Trump sent back a note alerting him that he would “see some movement on this soon.” On December 19, Trump announced the forthcoming withdrawal of the roughly 2,000 U.S. troops fighting ISIS in Syria. The move was resisted by just about everyone around Trump, inside and outside the administration, including John Bolton, Jim Mattis and Lindsey Graham. All, except Paul.
“I think people mistake it like Rand is trying to get him to do what Rand wants. But this is what Donald Trump ran on,” says Stafford. “Rand sees his role more as keeping the president where he wants to be and where he said he would be against some people who are inside of the White House and other senators who are trying to push him off of his beliefs and his position.”
Paul’s strategy was partially to ingratiate himself with the man he once, in the primary season, called an “orange-faced windbag.” Trump and Paul have played golf together, a favorite pastime for the president and a way other former antagonists have overcome bad blood.
.. in recent months, Paul has ramped up his public praise for Trump and joined the chorus of Republican criticism for the president’s treatment in the press. Trump has returned the favor with praiseworthy tweets. Paul had raised concerns about two of Trump’s high profile nominations in 2018, for their defenses of the government’s data surveillance apparatus. But he dropped his public skepticism of Brett Kavanaugh and, earlier in the year, did an about-face on his opposition to Mike Pompeo.
Stafford gives credit for Paul’s success to the senator’s constant prodding of the president to be true to himself and his base. “It’s not just Rand’s voice. People who voted for Donald Trump don’t want to still be there either,” Stafford says. “He ran on it, he was loud and clear on it, and he believes it.”
Like opposition to military interventionism in the Middle East, an increase in infrastructure spending is one of the few major Trump campaign pledges that aligns him more with Democrats than his fellow Republicans. Trump’s failure to embrace a major infrastructure bill in favor of the divisive travel ban at the outset of his presidency may have doomed his ability to work across the aisle on the issue. Yet Pelosi could get more than enough of her caucus to embrace some form of new infrastructure spending by reminding the president of his 2016 promise to invest more federal dollars in roads and bridges. If she persists in nudging Trump to fulfill his pledge, Pelosi could deliver a longtime Democratic wish list item.
Stay Outside the Room Where It Happens
Before he was the White House national security adviser being overruled by the president on Syria, John Bolton was arguably more influential with Trump as a private citizen—albeit one with the right platforms to reach him. A fixture on Fox News for the first year of the Trump presidency, Bolton used his cable perch and the host of outlets that would publish him to make an argument directly to Trump: Get out of the Iran nuclear deal.
Trump, who had run hard against what was officially called the Joint Comprehensive Plan of Action, had been persuaded to recertify the deal in early 2017 until the new administration could get off the ground. His national security team, particularly Mattis and Rex Tillerson, were insisting Trump recertify at the next deadline, in July. Trump was resistant but acquiesced to the pleas of his team to allow them to finish crafting a new interagency strategy on Iran. On July 13, my colleague Stephen F. Hayes and I reported in The Weekly Standard that Trump would recertify the deal a second time.
But four days later, on the day of the deadline, an article by Bolton in the Hill made its way to Trump via Iran-deal opponent and White House aide Steve Bannon. The headline read: “Trump Must Withdraw from the Iran Nuclear Deal—Now.” In his op-ed, Bolton argued that Trump “should stop reviewing and start deciding” how to exit the deal. For several hours that day, according to reporting by Hayes and me, Trump reversed his decision to recertify the deal. The White House team scrambled to roll out a brand-new policy. In one meeting that day with his national security team, Trump called up Senator Tom Cotton and placed him on speakerphone as Cotton made the case against recertification.
In a final meeting in the late afternoon, Tillerson and national security adviser H.R. McMaster prevailed on Trump to follow through on the plan to recertify, at least once more. Trump eventually assented, but not before vowing it would be the last time he would do so. It was: Trump did not recertify in October 2017 and, in May 2018, pulled the United States out of the agreement. Bolton and Cotton, working from the outside, won.
This may be the most difficult tactic for Pelosi, who so far has been unable to demonstrate she has Trump’s trust or respect—something the outside voices have always been able to draw on. She’s not
one of Trump’s old business friends in New York,
a consistent defender in the conservative media,
or a former campaign or White House aide.
The best way for Pelosi to persuade Trump from the outside is to do perhaps the unthinkable for a liberal Democrat from San Francisco: Go on Fox News. A lot. Pelosi or her deputies won’t be the obvious choices for the booking producers at Fox & Friends and Hannity, but House Democrats would be wise to take every opportunity to speak directly to Trump on his favorite cable network. A few solid appearances on Fox News Sunday, for instance, would help Pelosi immensely.
Pelosi herself already seems to recognize the necessity of making a public case, most obviously on television, for compromise with Trump. “You know how I talk to him?” she told Draper. “I just say it in public. That’s what he hears: what people say in public.” A Democrat in Trump’s Washington could do worse.
Once the Senate Republicans decided to countenance demagoguery, one step led to another.
.. Leland Keyser, a friend of Ford’s who does not remember being at such a party but has expressed her faith in Ford’s account, was also interviewed. A number of Yale classmates who offered portrayals of Kavanaugh as a belligerent drinker, and without whom, Democrats argued, the investigation was incomplete, were not. Neither were Blasey and Kavanaugh.
.. Republican senators, in the interest of getting a conservative nominee confirmed, discounted the apparent lies that he told about his role in Bush-era torture and detention policies and in judicial nominations. And it extends to their decision to tolerate the excesses of Donald Trump, in return for his promise to nominate a conservative. When you decide to countenance demagoguery, one step leads to another.
.. Last week, the Republicans had to put up with the President goading a crowd at a rally in Mississippi to laugh at Ford. Some of Kavanaugh’s supporters worried that this would make it harder for late-deciding Republicans to vote yes. In fact, Trump made the process more humiliating, not only for them but for the entire Republican Party.
.. Lisa Murkowski, of Alaska, was the only Republican to say that she would not support Kavanaugh.
.. In contrast, the majority of the senators who had made their choice clear weeks ago were allowed to move, unperturbed, toward what was one of the most momentous votes of their careers. They made speeches if it was opportune, but not much else was expected of them, other than party loyalty.
.. Scott Pelley, of “60 Minutes,” asked him if he would have been willing to call for the postponement of the vote if he were running for reëlection. “No, not a chance,” he said. “There’s no value to reaching across the aisle. There’s no currency for that anymore.”
