Tag Archives: Supreme Court

2020 General Election, Democracy

Senator Whitehouse tutors viewers watching at home on the dark money scheme not visible at the hearing

Describing (on day two) what was happening at the Senate Judiciary Committee hearing as comparable to a puppet theater, Senator Sheldon Whitehouse offered a backgrounder on “a $250 million dark money operation” that led to the Amy Coney Barrett nomination.

“You are not going to understand the real dynamic what is going on here, and you are certainly not going to understand forces outside of this room who are pulling strings and pushing sticks and causing the puppet theater to react,” Sheldon said.

He jabs three Republican members of the committee, Senators Chuck Grassley, Ted Cruz,  and Chairman Lindsey Graham, as well as Majority Leader Mitch McConnell for their “hard-to-explain hypocrisy” (though, of course, unprincipled political opportunism and the embrace of raw political power is not all that hard to explain). He also punctures the charade that Republicans have performed each day at the hearing: that Democrats’ attention to Roe v. Wade, Obergefell, and numerous Obamacare cases is inexplicable, since Amy Coney Barrett has pledged to rule fairly, without any bias except a commitment to the letter of the law, in whichever cases she is presented with as a justice.

Senator Whitehouse and his colleagues know that the idea of Barrett as a blank slate is ludicrous, no matter how much Republicans pretend otherwise. These cases have been in the crosshairs of the conservative legal movement, the party’s conservative evangelical base, and Republican elected officials since each of the respective SCOTUS rulings were handed down. The right to abortion, to gay marriage, to affordable healthcare — even when one has preconditions that before the ACA would have precluded having health insurance — are at stake.

In each case, the GOP has fought fiercely to overturn the ‘liberal’ rulings, yet in the hearings this week, Republican senators appeared baffled at the idea that somehow confirming the Notre Dame professor as a justice would lead to any reversals, much less any real world consequences. But of course, Professor Barrett was chosen because there is in her record virtually no wavering from the party line — championed with immense infusions of corporate dollars — on any of these issues (or any others to which the GOP and its donor base are committed).

While illustrating the connections between deep-pocketed right-wing foundations, huge corporations, the National Federation of Independent Businesses, the Judicial Crisis Network, the Federalist Society, and the Trump White House, the senator explained the “scheme with the same funders selecting judges, funding campaigns for the judges, and then showing up in court in these orchestrated amicus flotillas to tell the judges what to do.”

The lesson on a very impressive, highly successful decades-long campaign by corporate interests to capture the federal courts is much more illuminating than 28 minutes of Q & A with the nominee would have been.

The transcript is available from the Center for Media and Democracy, but it’s worthwhile to watch the presentation, which included helpful visual aids.

2020 General Election, Democrats, Republicans

The phrase “Court-packing” should not be in the vocabulary of any Democratic candidate

“I’m not a fan of court-packing, but I don’t want to get off on that whole issue,” Biden told CNN affiliate WKRC in Cincinatti. “I want to keep focused. The President would love nothing better than to fight about whether or not I would, in fact, pack the court or not pack the court.”

In this response, Joe Biden used the phrases “court-packing” and (twice) “pack the court.” In doing so, he accepted, wholly, unreservedly the Republican-frame of the question of whether Democrats — if they win the presidency and the Senate — should consider changing the number of Supreme Court justices.

While this is unlikely to have a measurable impact on the trajectory of his campaign, I regard this as an unforced error.

. . . I thought I would become apoplectic when I saw that some Democrats were referring to expanding the Supreme Court as “court packing” or tacitly accepting the use of the phrase when asked about it by reporters. Any Democrat who uses this phrase should be, metaphorically at least, hit over the head with a stick.

The simple fact is that “court packing” is a pejorative phrase. It is nonsensical to use it as a description of something you’re considering supporting or actively supporting. If you decide to support a certain politician you don’t refer to deciding to ‘carry their water.’ Someone who supports expanding the estate tax doesn’t call it the ‘death tax’. This is obvious. Doing so is an act of comical political negligence. But of course the error is far more than semantic. No one should be using this phrase because it is false and turns the entire reality of the situation on its head. — Josh Marshall, the day before Biden made his comment

Although I don’t advocate hitting Biden over the head with a stick, I wish his team would have armed him with another response. The Biden campaign — like the Democrats on the Senate Judiciary Committee on day one of the hearing — has maintained superb message discipline. They lost it in this instance.

Republicans don’t use the phrase “voter suppression” to describe their electoral strategy. Or “court-packing” to describe their packing the federal courts at all levels with Republican lawyers — often regardless of their qualifications, judicial experience, or temperament — whom they expect to be ideological and partisan jurists to rule consistently against Democratic constituencies, issues embraced by Democrats, and Democratic governors and legislators.

But, in addition to conveying the simple rule, Don’t use a pejorative expression flung at you by your political opponents, there’s a more basic issue at work (just beneath the surface). Josh Marshall followed the obvious point with an elaboration that reveals a more fundamental blunder [emphasis added]:

If you decide to support a certain politician you don’t refer to deciding to ‘carry their water.’ Someone who supports expanding the estate tax doesn’t call it the ‘death tax’. This is obvious. Doing so is an act of comical political negligence. But of course the error is far more than semantic. No one should be using this phrase because it is false and turns the entire reality of the situation on its head.

Republicans have pursued an extreme agenda through corrupt means to politicize the courts. That’s the issue staring us in the face (though not, in the midst of an election campaign that will culminate in three weeks’ time, an issue that Biden must address now).

The formula was and is simple: use every ounce of raw political power to stack the federal judiciary with conservative ideologues. Refuse to consider nominations; then rush them through. No nominations within a year of an election; but quickie confirmations within a month of an election. Republicans have taken the constitutional framework and abused it to the maximum extent possible to achieve this transcendent goal. While these are almost universally abuses, none are clearly illegal or unconstitutional. At the most generous they amount to using every tool that is not expressly illegal to maximize control of the federal judiciary.

The untimely death of Ruth Bader Ginsburg in the final weeks of an election Republicans seem likely to lose has cast the whole drama in clarifying light. Republicans are now on the cusp of securing a 6-3 conservative High Court majority which will act as an effective veto on Democratic legislation using arguments no less facially absurd than the list used to attack Obamacare.

This is all the work of decades. But it is particularly the work of the last decade, 2010 to 2020. And it is all guaranteed, locked in, final on the assumption that Democrats will not even consider much milder and expressly constitutional remedies to repair the damage wrought by Republican judicial corruption. Indeed, conservatives are now reacting with something like apoplexy at the idea all this work, wrecking half the government in the process, could be voided with a simple majority vote to expand the federal judiciary and the Supreme Court. The Republican program is raw power for me, norms and prudence for you. Few things show how much Washington DC remains wired for Republican power than the idea that anyone can with a straight face call the possibility of Democrats taking some remedial action “court packing.”

Joe Biden, take notice.

(Image: Amy Comey Barrett makes her opening statement on day one via PBS/YouTube.)

2020 General Election, Democracy, Donald Trump, Off the Rails

Donald Trump speculates: “Delay the Election until people can properly, securely, and safely vote?”

“He gets new information. He likes to talk that through out loud. And really have that dialogue. And so that’s what dialogue he was having.“ — Dr. Deborah Birx on Donald Trump’s suggestion at a public health briefing that injecting bleach could be a cure for COVID-19.

Yesterday:

▪ Donald Trump boohooed that he had lower approval ratings among Americans than Dr. Anthony Fauci:

He’s working with our administration. And for the most part we’ve done pretty much what he and others — Dr. Birx and others, who are terrific — recommended. And he’s got this high approval rating. So, why don’t I have a high approval rating with respect — and the administration — with respect to the virus?

▪ He downplayed the coronavirus and touted hydroxychloroquine as remedy, though the FDA revoked authorization for use of the drug for COVID-19 treatment “reports of serious heart rhythm problems and other safety issues, including blood and lymph system disorders, kidney injuries, and liver problems and failure.”

▪ And the President retweeted a video (since removed by Twitter, Facebook, and YouTube, but not before 14 million viewings) with discredited claims from a Houston doctor/religious minister that she has successfully treated hundreds of coronavirus patients with hydroxychloroquine and that face masks are not necessary to stop the spread of the virus. Stella Immanuel has also claimed that gynecological problems are caused by having sex in ones dreams with demons and witches; that DNA from alien beings is being used in medicine today; and that “reptilions” and other aliens are embedded in our government.

▪ Donald Trump is still a fan: “There was a woman who was spectacular in her statements about it: that she’s had tremendous success with it.”

Just another day in the Trump presidency. So, when he tweets about delaying the election, is Trump simply riffing? Merely talking out loud about something he’s seen online or on cable TV? Is this nothing more than more idle talk from an uninformed, credulous individual?

Neither the Constitution, nor federal law grant this man, even though he sits in the Oval Office, the authority to change the date of the 2020 election. But it is well within his power to signal his view that something isn’t on the up and up. Something about the November 3 election is rotten. The Democrats are trying to cheat.

The President of the United States has sought for many months to delegitimize the 2020 election, much as he did in the run-up to the 2016 election, before winning it — and even afterwards.

Donald Trump has presided over a disastrous 2020. His failures — resulting in an unfolding tragedy that grows greater by the day — are unmistakable. Surveys of public opinion suggest a steeply uphill climb to reelection for the President.

As the prospect of losing has become more likely, Trump has waged a campaign against mail-in voting, insisting that “it doesn’t work out well for Republicans,” and even more dire that it will “lead to the end of our great Republican Party.”

He has continued to strike this theme throughout the year:

He has endorsed the unsubstantiated claim of Bill Barr that foreign governments might corrupt the election by printing and mailing counterfeit ballots

Election officials have discounted the President’s claims (“Trump claims without evidence that mail voting leads to cheating: A guide to facts on absentee ballots.”):

“We are not aware of any evidence supporting the claims made by President Trump,” the National Assn. of Secretaries of State said in a statement. “As always, we are open to learning more about the Administration’s concerns.”

So what’s Trump up to? Well, he’s revving up his base. For another thing, if Republican state legislatures and secretaries of state follow his lead, they will curtail, or refuse to expand, vote by mail options. That serves the venerable Republican strategy of voter suppression. Georgia Governor Brian Kemp and former Kansas Secretary of State Kris Kobach are past all-stars in this game.

Even if vote by mail options exist, Trump’s campaign may serve to suppress the Democratic vote. An NBC report (“A Trump trap? He’s the one who could get a boost from mail voting glitches”) explains why:

The real danger is a perfect catastrophe of administrative overload, postal delays and voter error that could lead to millions of absentee ballots not counting. And this year, unlike the past, those ballots are likely to be overwhelmingly Democratic.

Mail-in ballots are much more likely to be rejected than ballots cast in person. If Trump’s base votes in person on election day, those votes are more likely to be counted than Democratic votes cast by mail-in ballots. Some estimates suggest that up to 4-percent of mail ballots were rejected in 2016 with no opportunity to remedy any problems (as one might do at a polling place). Furthermore, studies suggest that younger voters and people of color — predominantly Democratic — are more likely to have their ballots disqualified.

If a higher proportion of Democrats than Republicans vote by mail, Democrats will be disadvantaged because of procedural glitches that are apt to multiply this year as the number of mail-in ballots increase — overwhelming some jurisdictions. Add to this a multi-million dollar GOP donor just appointed as Postmaster General, who is imposing changes on the Postal Service that have created backlogs and late deliveries. As a result, there will likely be delays in sending ballots to voters and in receiving voters’ completed ballots in a timely way that ensures that votes are cast and counted.

But there’s more to it than that. Republicans probably can’t suppress enough votes to win in 2020. These tactics, even with an assist from the U.S. Supreme Court, failed in Wisconsin. These cries of fraud and rigged elections serve another purpose, as Richard Hasen has explained:

If most Republicans vote in person and most Democrats vote by mail, Hasen said, that could create a scenario well suited to Trump’s tendency to make unfounded accusations of wrongdoing.  

“As Trump drives more and more of his supporters to vote in person and away from vote-by-mail, it’s quite likely that we’ll see Trump getting many more votes on election night, the votes that are counted on Election Day,” Hasen said in an interview on “The Long Game,” a Yahoo News podcast.

“Then, four or five days later, [if] Biden becomes the winner as the absentee ballots are counted in Philadelphia or Detroit, that’s a recipe, if it’s close, for a really ugly election scenario,” he said.

Election results for Philadelphia’s June 2 primary were not certified for nearly three weeks. The outcome of the June 23 primary in New York’s 6th CD, a victory by challenger Jamaal Bowman over Congressman Eliot Engel, was not clear for more than four weeks. It takes a long time to verify and count ballots received by mail. There will be tens of millions more votes cast in November than have been cast in primaries earlier this year.

The Brooks Brothers riot — in 2000 when Republican operatives from across the country created a mob scene in Miami-Dade County to stop officials from counting votes (after George W. Bush had established a small lead in the state) — is the template for creating chaos in November 2020 in any state where Trump has a slim lead and there are still thousands of ballots to be counted. Only this time the rioters (most of whom were not actually dressed in expensive suits) might be replaced by armed militias in camo. And multiply the rioting across a number of states.

Even if Trump trails in same day voting, if there are tens of thousands of uncounted votes in key states, he could still cry fraud.

Trump’s eruptions about voting by mail all serve as a setup for challenging his defeat in November. Whatever happens on November 3 and after, things have already become ugly.

This scenario is beyond abnormal. But rest assured this will not be Trump’s last off the rails maneuver between now and November 3.

There are 97 days to go.

(Image: from Five Thirty Eight’s average presidential approval July 30.

2020 General Election, Republicans

Vote by mail requirements present many enticing opportunities for voter suppression

Six key swing states — Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin — permit voters to cast mail-in ballots for any reason. Nonetheless, Ronald Brownstein notes (“The Most Important 2020 States Already Have Vote by Mail”), there is still much room for partisan disagreement in the coming months, as Democrats push to make voting simpler and easier, while Republicans oppose such efforts (even though in states that permit voting by mail — such as Arizona — Republicans may cast most of the mail-in ballots). Among the stickiest issues:

Partisan conflicts could erupt over how exactly citizens can request absentee ballots (many don’t allow them to do so online); whether the state will pay the postage to return the ballot (Michigan, Florida, and Pennsylvania are among those that don’t); and whether, amid the outbreak, states should still require voters to obtain witness signatures before submitting their ballot (as North Carolina and Wisconsin, among others, do). “Probably … tens of thousands of people will have difficulty getting those witnesses,” Morris said.

The most contentious subject will be the standards used to judge which ballots are rejected, particularly on the grounds that a voter’s signature doesn’t match records on file.

Daniel A. Smith, a University of Florida political scientist, has found that mail ballots in that state from young people and minorities are rejected at higher rates than those from older people and white voters—a dynamic that has obvious benefits for Republicans. In some states, Weiser noted, the election officials determining whether to accept a ballot can see on their screen the age and partisan affiliation of the voter they are assessing. Stewart told me he anticipates “a lot of litigation about the rejection of absentee ballots.” [My emphasis.]

This could be decisive in one or more battleground states. Imagine, hypothetically, a case going before the U.S. Supreme Court. A voter’s mail-in ballot has been disqualified because her signature doesn’t match — according to the county election officer, who happens to be a Republican — the signature on the envelope containing the ballot. The voter, who happens to be African American, has filed an affidavit attesting that the signature is hers, and the ballot that she cast is inside the sealed envelope. Suppose hundreds or thousands of additional voters from Democratic areas have had their ballots disqualified based on their signatures.

Recall that the Republican majority in the Supreme Court’s Bush v. Gore decision stopped local officials from counting ballots in Florida in 2000, giving the election to the Republican candidate for president. Suppose in our hypothetical that a ruling in favor of the voters who wish their votes to be counted, would likely tip the state to Joe Biden, while a ruling in favor of the local official would likely tip the state to Donald Trump: how likely is it that the Republican majority on the current Court would decide in favor of voters?

This past week in Wisconsin, mostly Democratic voters did not receive the mail-in ballots soon enough to vote by mail. The Court’s majority found that the right to vote was of lesser importance than a “narrow, technical question” of the law. Suppose such a scenario plays out in November. Suppose, even, that Republican election officials are suspected of either slow-walking the process or simply find themselves unprepared to meet the demand for mail-in ballots? How likely is it that the Republican majority on the Supreme Court would side with voters and against local officials?

Signature requirements – and the possibility of failures by state and local government, including deliberate failures – are huge red flags for anyone who supposes that Republicans are ready and willing to cheat, if necessary, to win an election.

(Image from New York Times‘ Retro Report on Florida in 2000 on YouTube.)

Democracy, Republicans

Senator Sheldon Whitehouse lobs a warning to SCOTUS’s Republican men

Earlier this month Senator Sheldon Whitehouse and four of his Democratic colleagues filed a remarkable amicus curiae brief in a gun control case before the Supreme Court. The message to the five men appointed by Republican presidents to the high court was direct and unflattering.

The conclusion – after an amply documented, well focused critique of the court and of the deep-pocketed interests whose dark money has shaped the court: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”

A May 2019 Quinnipiac poll cited in the brief documents these public attitudes. The poll reported that 55 percent of Americans believe the Supreme Court is motivated mainly by politics and a majority believes that “Supreme Court should be restructured in order to reduce the influence of politics.” The reference to restructuring, of course, evokes Franklin Roosevelt’s proposal to pack the court.

Whatever the GOP stalwarts on the Court make of this, Republican commentators have reacted predictably. David French wrote in National Review, “It is easily the most malicious Supreme Court brief I’ve ever seen.” The Wall St. Journal described it as “an enemy of the court brief.” Ted Cruz tweeted, “Extremely concerning to see Senate Democrats threaten federal judges like this. If this isn’t an improper attempt to influence – read: OBSTRUCT – the highest court in the land, then I don’t know what is.”  

And let’s not leave out Lindsay Graham: “Packing the Supreme Court… Bad idea. Liberal dream. Trump’s 3rd term is looking better and better!”

On the other side of the aisle, Ian Milhiser (whose book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, reflects his view of the court’s malign influence throughout most of U.S. history) agreed that the brief was hardly typical (though he didn’t get bent out of shape about it):

A tone of ritualized obsequiousness pervades most briefs filed in the Supreme Court of the United States. Judges are powerful and at the Supreme Court level, unaccountable. They wield enormous, arbitrary power not just over litigants but over the lawyers who appear in their courtrooms. So when most lawyers speak to a court, they speak with a painful awareness of the arbitrary control separating the bar from the bench.

Sen. Sheldon Whitehouse (D-RI), however, is not most lawyers.

Senator Whitehouse with Senators Mazie Hirono, Richard Blumenthal, Dick Durbin, and Kirsten Gillibrand are unsparing in their brief, which opposes standing for the plaintiffs in the case (New York State Rifle and Pistol Association Inc v. City of New York, New York). Straightforwardly, since the gun group objected to a New York City ban on transporting guns, and the city has repealed the law, the case would appear to be moot. But the court rejected a petition from NYC to declare the case moot.

The brief portrays the petitioners as deep-pocketed special interests openly promoting a political project:

Confident that a Court majority assures their success, petitioners laid their cards on the table: “The project this Court began in Heller and McDonald cannot end with those precedents,” petitioners submit.

The brief notes that, at this stage, there is no live legal question before the court, no grounds for standing, but that gun rights advocates believe that, with Trump’s appointees on the bench, they are headed toward a victory.

Noting that this “effort did not emerge in a vacuum,” the brief documents the NRA’s $1.2 million television campaign in support of Brett Kavanaugh’s nomination to the court (because he would “break the tie” in Second Amendment cases) and the campaign against a Democratic Senator who opposed the nomination.

Further, a Federalist Society publication suggested that “the logjam has been cleared” with Justice Kavanaugh replacing Kennedy on the court. The brief continued, “This commentary is of particular note because it was published by an organization that has such a prominent role in the Republican Party’s efforts to shape the federal judiciary in favor of donor interests,” and references the Executive Vice President of the Federalist Society, Leonard Leo (whom Politico describes as “the quiet architect of a pivotal shift to the right throughout the federal judiciary”), linking him to “a million-dollar contribution to the NRA’s lobbying arm, and to a $250 million network largely funded by anonymous donors to promote right-wing causes and judicial nominees.”

The brief observes, “The Society counts over eighty-six percent of Trump administration nominees to circuit courts of appeal and to this Court as active members,” and comments on the “massive political spending,” largely from dark money, that funded this effort. In a footnote, the brief quotes former White House counsel Donald McGahn (of Mueller report fame):

Our opponents of judicial nominees frequently claim the president has outsourced his selection of judges. That is completely false. I’ve been a member of the Federalist Society since law school—still am. So, frankly, it seems like it’s been insourced.

“The influence effort directed at this Court has been industrialized. In this particular ‘project’ to rewrite and expand the Second Amendment, petitioners are flanked by an army of nearly sixty amici.” But, the brief argues, since the donors are hidden from view, it is impossible to know how widespread the support is. “Were there … transparency, this amicus army would likely be revealed as more akin to marionettes controlled by a puppetmaster than to a groundswell of support rallying to a cause.”

In contrast:

Out in the real world, Americans are murdered each day with firearms in classrooms or movie theaters or churches or city streets, and a generation of preschoolers is being trained in active-shooter survival drills. In the cloistered confines of this Court, and notwithstanding the public imperatives of these massacres, the NRA and its allies brashly presume, in word and deed, that they have a friendly audience for their “project.”

Conservatives reject principles, embrace activism

Since the law the plaintiffs objected to has been struck down, the case – by all appearances – is moot.  The brief quotes both John Jay, the court’s first chief justice, and John Roberts, the current chief justice, to the same effect: the judiciary was not established to settle hypothetical disagreements. Benjamin Cardozo (former SCOTUS justice nominated by Herbert Hoover) is invoked, rejecting the notion that a judge is “a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness,” and, again, Roberts, cautioning that the Supreme Court “is not a legislature,” though “It can be tempting for judges to confuse [their] own preferences with the requirements of the law.”

Be that as it may, recently – as the Federalist Society project has found greater success – Republicans on the bench have begun to abandon conservative judicial principles: principles that they have embraced in the past. When Clarence Thomas sought confirmation before the Senate Judiciary Committee in 1991, he said that “you cannot simply, because you have the votes, begin to change the rules, to change precedent.” That was then. This is now (Thomas in 2019): “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”

The pattern of outcomes is striking; and so is the frequency with which these 5-4 majorities disregarded “conservative” judicial principles like judicial restraint, originalism, stare decisis, and even federalism.

The brief cites this record: From the term beginning October 2005 through the term beginning October 2017, the Supreme Court issued 78 5-4 (or 5-3) opinions in which the majority consisted solely of Republican-appointed justices. “In 73 of these 5-4 decisions, the cases concerned interests important to the big funders, corporate influencers, and political base of the Republican Party.” In every case, the justices ruled in favor of the Republican Party’s interests.

With bare partisan majorities, the Court has influenced sensitive areas like voting rights, partisan gerrymandering, dark money, union power, regulation of pollution, corporate liability, and access to federal court, particularly regarding civil rights and discrimination in the workplace. Every single time, the corporate and Republican political interests prevailed.

The pattern, and the abandonment of conservative legal principles in favor of partisan activism (which I’ve documented in previous posts), is clear. Add the Federalist Society’s decades-long campaign and the unprecedented refusal of the U.S. Senate – once Republicans gained control of the chamber – to confirm Barack Obama’s appellate court nominees, to hold hearings on Merrick Garland’s nomination, to adhere to the ‘blue slip’ rule, and so on. And then add Brett Kavanaugh’s unhinged, aggrieved, conspiratorial hate-fest directed at the Clintons and the Democratic Party during his confirmation hearings, and we begin to hear talk of restructuring the court.

Fair enough. So, why did Whitehouse and company file this brief? The Senator rejects the accusation that he was threatening the court.

“In the same way that you might warn somebody walking out on thin ice — ‘Hey, the ice is thin out there, you want to be careful, maybe you want to come in’ — I think that was the motivation for filing this brief.”

But what a warning. “This filing is a badass move by these Senate Democrats. The Republican justices on the Supreme Court should be on notice that the public is quickly losing faith in the court as a legitimate institution.” — Brian Fallon, Executive Director of Demand Justice

Lawrence Tribe wasn’t as enthusiastic about putting the Republican men on notice: “I agree the Court should drop this case as moot and am usually a fan of @SenWhitehouse but I think this brief was inappropriately — and stupidly— threatening. If anything is calculated to get the Court’s back up, it’s a brief like this. Really bad move.”

Professor Tribe made a career out of shaping arguments to appeal to one or another of a series of Republican-appointed swing justices, so – okay – he wouldn’t have written this. Presumably he would have been aiming to influence the current swing justice, John Roberts, though he is much further to the right than swing justices in previous decades.

So, should Whitehouse have focused narrowly on standing, rather than unleashing his grand critique? Should he, if he insisted on raising the broad issues in the brief, have tread more gently? Well, I suppose so, if his intent were to influence John Roberts — that is, unless Whitehouse concluded that bluntness, or (contra his denial) a threat, or perhaps authenticity conveyed through a more direct message, would be more effective at influencing the chief justice.

Or this may be a case of senators being senators, of Whitehouse, Hirono, Blumenthal, Durbin, and Gillibrand just sounding off because they’ve had enough of SCOTUS’s Republican men, and of McConnell and Graham and Cruz and Trump … They might be justified in thinking: Why should Democratic Senators feel constrained about offending the shameless partisans in Donald Trump’s corner? (It’s a different era, Professor Tribe. Those old tricks have seen their day.)

Jonathan Chait writes today about the book American Carnage:

The most interesting revelation in Alberta’s book may be the degree to which Republicans convinced themselves of their own lofty rhetoric. When he predicted that he and his allies would resist Trump’s authoritarianism, thereby proving that their opposition to Obama was genuine, Mulvaney clearly believed it. And when Ted Cruz told his aides during the primaries, “History isn’t kind to the man who holds Mussolini’s jacket,” he surely had no idea what lay in store for him. If Trump has accomplished anything, it is to force Republicans to see their party and themselves a little more clearly.

Well, maybe. If so, then perhaps that’s what’s behind the Whitehouse brief. The five Republican men, if they read the brief, may be ‘forced’ to see themselves a little more clearly. Could that be the point?

Here’s another possibility. Dissenting justices don’t write their opinions to change the minds of sitting justices in the majority, so much as they write to influence future justices. Their hope is that their views will capture majorities at a time that has yet to come.

This amicus brief may be speaking to future justices, to law professors and students, to Democratic officeholders and activists, and perhaps to the four women and men on the court appointed by Democratic presidents.

This may be a shout out to allies. It may serve to lay the groundwork for future decisions and future campaigns.

It cheered me. I’m sure it cheered others. That may be reason enough to have filed it.

(Image: wikipedia.)

Democracy, Short & Sweet ... Short & Sour, Tribalism

Have we seen the last “vivid display of willed gullibility” from John Roberts?

Quote of the day on the Chief Justice’s decision “in at least one case, that he would no longer play rubber-stamp judge …”:

“I understand that Roberts is not a secret moderate. He’s a lifelong conservative with far-reaching legal goals of rolling back civil-rights, economic, and environmental gains. But if the chief justice is sick and tired of being treated like Francisco’s idiot intern, the possible ramifications are huge. If he were to begin taking account of facts—taking this administration at its word when it tells the world of its plans to punish Muslims, torment immigrants, disfranchise its opponents, cripple Congress, and silence its critics—then there may be more times when the chief says, in so many words: Stop lying. Do the job right or give it to someone who can.” – Garrett Epps

Well, this could happen.

(Image of Roberts from wikipedia.)

Democracy, Republicans

The Long Game: SCOTUS imperils California’s authority to protect the coast

A 5-4 ruling of the U.S. Supreme Court, in Knick v. Township of Scott, threatens the California Coastal Commission’s ability to oversee land and water use in the coastal zone and to ensure public access to beaches and oceanfront. But not right away. The activist conservative ideologues that form the 5-man Republican majority on the Court – in lockstep with the conservative legal movement – are playing the long game. The four Democratic justices in the minority of the Court’s most significant 5-4 decisions (which will continue inexorably for the foreseeable future), understand the long game, and are responding with increasingly furious dissents as the majority overturns longstanding precedents.

The case at hand is nothing special: a property owner’s dispute regarding a land use decision by a local government.  The decision overturned a 1985 ruling – and decades of previous precedents – that required property owners to seek redress in state courts (when state and local land use decisions were in dispute) rather than in federal court. In Knick v. Township of Scott, the majority ruled that property owners in land use disputes could bypass state courts and proceed immediately to the federal courthouse.

The common law concept of eminent domain is a sovereign power of the state to ‘take’ property – chiefly to purchase land for public use (to build a highway, a city hall, or an aqueduct, for instance). States may also impose averse restrictions on property to protect public interests (such as to ensure sustainable development along California’s coast), a regulatory taking. Takings are pervasive at the federal, state, and local levels – and have existed since before the Constitution was ratified. In the 19th century, the taking of private property was instrumental in construction of transcontinental railroads.  

The law and practice in this area is so well established that the prospects for successfully resisting takings in state courts are severely limited. So the conservative legal movement has focused for decades on capturing the federal courts, in this case with some creative legal theories regarding the Constitution’s Takings Clause.

The Takings Clause (the last lines of the Fifth Amendment) reads in full: “nor shall private property be taken for public use, without just compensation.” The conservative legal movement (including the Federalist Society, which can take the lion’s share of credit in the seating of the five-member ideological conservative majority on the Supreme Court) has pushed since the Reagan era to change Constitutional law so that the property rights of individuals trump the authority of government to interfere with those rights, as the California Coastal Act has done successfully.

David Savage in the Los Angeles Times noted the environmental implications of this ruling for California, which has strict regulations restricting development in cities and on the coast. Based on the Coastal Commission’s considerable influence and the persistent challenges it has faced since its inception, the biggest target of movement conservatives, in my view, is the California Coastal Act of 1976.

In fall 1972, California voters passed Proposition 20, which established the California Coastal Commission. Under Prop 20, the Commission’s authority was to expire in four years; the legislature made the law permanent when it passed the California Coastal Act of 1976. Environmental advocates have found reason to criticize the Commission from time to time. (The Coastal Commission, for instance, approved construction of an estate, featuring five houses, in the mountains overlooking the Pacific for U2 guitarist The Edge, aka David Evans. But Evans lost his latest battle to build with the victory going to the Sierra Club, which opposed the Commission’s approval. In March this ruling was described by the Malibu Times as the “nail in the coffin” for Evans’ plans after a 14-year legal battle. Rest assured, he will appeal to federal court now.)

On the whole, despite the criticism, the Coastal Commission has been extraordinarily successful in protecting the California coast from unsustainable development. (In the Evans’ case, it acted to establish compliance with previous setbacks it had suffered in court.) While its efforts to ensure public access to beaches where very rich people live have been less successful – with court battles dragging on for decades, creating legal stalemates – it has continued its efforts on behalf of the public, often (if not always) winning.

Throughout the past four decades, the Commission’s authority has been under fierce attack by conservatives, who oppose environmental regulations and regard the Commission’s strict environmental rules as draconian. The Act has withstood most significant legal challenges, because it was well crafted to conform to precedent and established law.

That changed with this week’s ruling in favor of Rose Mary Knick, the client of the Pacific Legal Foundation, which has been on a quest to get federal courts to reinterpret the Takings Clause for decades. This ruling is hardly PLF’s first victory at the high court, but it is potentially its most far-reaching victory to date.

This ruling is troubling because if every land use dispute becomes a federal case, with a Supreme Court majority comprised of conservative ideological activists, then the authority of government to enact and enforce environmental regulations will be subject to challenge. The legal basis for environmental protections has suddenly become much less secure. Not only the California Coastal Act, but the Clean Air Act, the Clean Water Act, the Environmental Protection Agency, the Endangered Species Act, and much else are all at risk of being ruled unconstitutionally burdensome – a violation of the Takings Clause.

Last month, in a post about two recent Supreme Court cases, I wrote about the expansive agenda of the aggressively activist conservative SCOTUS majority. The five Republican men comprising the court’s majority have sidestepped textualism and originalism (to which they sometimes pledge allegiance) and rejected the conservative legal principle stare decisis. Rather than reliance on the Constitution, or devotion to legal principle, the majority appears committed to results-oriented jurisprudence—consistent with the Republican Party’s wish list.

In the second case, Franchise Tax Board v. Hyatt (which overturned Nevada v. Hall), Justice Breyer expressed concern, in light of the majority’s disregard of stare decisis, about future rulings of the court:

“It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.”

In Knick v. Township of Scott, Justice Kagan objected in her dissent: ‘Under cover of overruling “only” a single decision, today’s opinion smashes a hundred-plus years of legal rulings to smithereens.’

She referenced Breyer’s dissent in Hyatt:

Just last month, when the Court overturned another longstanding precedent, JUSTICE BREYER penned a dissent…. He wrote of the dangers of reversing legal course “only because five Members of a later Court” decide that an earlier ruling was incorrect…. He concluded: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”

Then Kagan concluded, “Well, that didn’t take long. Now one may wonder yet again.”

While I have focused on the consequences for environmental law – and the threat to the California Coastal Commission – the implications of this ruling are far broader.

This reinterpretation of the Takings Clause also threatens workplace-safety regulations, progressive taxation, and employee rights. As I wrote last month, this activist conservative majority may be ushering us into a new Lochner Era, when federal rules and regulations did not impede business or corporations. With the latest 5-4 ruling, the court takes us a step closer to overturning federal authority to ensure that we have clean air and water, safe workplaces, consumer protections, and the right to union representation.

Democracy, Republicans

Reversal of Roe v. Wade is only a sliver of the agenda for the activist SCOTUS majority

It’s not just Roe v. Wade that is threatened by a Supreme Court with two Trump-appointed justices. Two Supreme Court cases in the news this week, and the willingness of the activist majority to abandon conservative judicial principles and impose their vision of the Republican platform on the country, presage devastating rulings ahead for environmental protection, health and safety rules, consumer rights, union-organizing, restraining monopolies, and all manner of regulation that seeks to benefit working- and middle-class folks as opposed to big business. The U.S. hasn’t seen such a conservative and aggressively activist SCOTUS majority since before the New Deal.

CASE #1

“District of Columbia v. Heller, which recognized an individual right to possess a firearm under the Constitution, is unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench.” John Paul Stevens, May 14, 2019

In District of Columbia v. Heller, Antonin Scalia’s 5-4 majority opinion struck down a law banning possession of handguns and requiring other firearms to be stored unloaded or locked. The Court’s decision rejected the clear language of the Constitution (which recognized the right to bear arms to sustain well-regulated state militias); Colonial history, when firearm regulations were in place before adoption of the Constitution; a history of uncontroversial federal restrictions on firearms (including a 1927 ban on mail delivery of handguns and a 1934 law outlawing possession of sawed off shotguns and machine guns); and the unanimous 1975 Supreme Court ruling, United States v. Miller, which deferred to the plain language of the Second Amendment, “In the absence of any evidence that the possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

“One of the greatest pieces of fraud”

Stevens writes:

So well settled was the issue that, speaking on the PBS NewsHour in 1991, the retired Chief Justice Warren Burger described the National Rifle Association’s lobbying in support of an expansive interpretation of the Second Amendment in these terms: “One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.”

It is critical to see what was going on here: The court majority in the Heller case was intent on embracing not a strict reading of the text, or original intent, or legislative history, or a common sense remedy to an acknowledged social problem; instead, the 5-4 majority adopted a historically anomalous interpretation of the Second Amendment, created and espoused in recent decades by the conservative legal movement and powerful allies of the Republican Party, chiefly the National Rifle Association.

Long story short: NRA hardliners in the ’nineties elevated Wayne LaPierre to run the outfit, embraced survivalists and other fringe groups, and transformed the organization from a sportsman’s group to an advocate for militias that opposed “jack-booted government thugs” (ATF agents) and stockpiled arms in anticipation of a fight against federal tyranny. This mutation proved to be highly profitable for the nonprofit organization (and for LaPierre).

Stare Decisis

For former-Justice Stevens, stare decisis (a Latin phrase meaning ‘to stand by things decided’), which is the legal principle that the judiciary will respect precedent, was sufficient to justify upholding the District’s gun regulations. As SCOTUS decisions in previous decades have affirmed [Payne v. Tennessee], stare decisis is “a foundation stone of the rule of law,” which “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Stare decisis alsoreduces incentives for challenging settled  law, saving parties and courts the expense of endless relitigation.

Stevens concludes his essay with mention of mass shootings – at schools, music venues, churches – that now occur with tragic regularity. The 5-4 Heller majority – in rejecting the conservative legal principle, stare decisis, and imposing a viewpoint embraced by Republican Party special interests, chiefly the NRA – made these shootings inevitable by prohibiting sensible regulation of firearms.

CASE #2

Last Monday, another 5-4 Republican majority rejected stare decisis in Franchise Tax Board of California v. Hyatt, a decision (related to a dispute between California and a former Californian, who now resides in Nevada) that hinged on the issue of state sovereignty. Stephen Breyer’s dissent (on behalf of the four Democratic justices) sounded a warning, which has been widely interpreted as anticipating the majority’s willingness to reverse Roe v. Wade. Leah Litman, writing in the New York Times, sounded a common refrain:

… Hyatt has everything to do with the Supreme Court’s respect for precedent. And respect for precedent is one of the few things, if not the only thing, that stands between the conservative Roberts court and overruling Roe v. Wade. Hyatt made clear that the five conservative justices are perfectly content to overrule a precedent merely because they disagree with it. That should raise alarm bells about Roe, particularly as states enact draconian restrictions on abortion.

I agree with Litman and Breyer: the Roe decision is highly insecure with the five Republican justices that form the court’s majority. Reversing Roe would have cataclysmic effects on women’s reproductive rights in much of the country. For evangelicals and others who would like to put women back in their places (circa the 1950s, the ‘Again’ in Trump’s MAGA), erasing Roe would be a giant step in that direction.

But – without diminishing the repercussions for women – reversing Roe is only the tip of the iceberg.

Because Roe was so fundamentally consequential and, as a major driver of Republican votes, continues to be so consequential, it is often a focus of discussions about the Supreme Court. But with the focus on Roe, there may be a significant failure to appreciate how broad and comprehensive the conservative legal movement’s attack on settled law has become.

California cautionary tale circa 1986

In an illustrative case in 1986, California voters recalled Chief Justice Rose Bird and two associate justices of the State Supreme Court. Voter anger over the death penalty – Bird and company had overturned more than 60 death penalty verdicts, while upholding none – powered the successful campaign. But the campaign was lavishly funded by agribusiness, the banking industry, and other special interests who sought to squelch the most pro-worker, pro-consumer high court in the country. It worked. The court, after the recall, became much more attuned to the interests of business and corporations.

The controversy over abortion has – for decades – been the high profile campaign issue that the death penalty was in California thirty years ago. But now, as then, that’s hardly all that is at stake. The bulk of the GOP donor class is more intent on quashing regulation, lowering tax rates, suppressing worker rights, and keeping consumers at bay, than reversing Roe. They are seeking a compliant federal bench. Right to life vs. right to choose is a more salient issue for most voters, than (for instance) rulemaking and enforcement at the Consumer Financial Protection Bureau, so Roe has been the focus of debate about the courts.

Movement conservatives shun conservative legal principles

In the Hyatt case, like Heller, the 5-4 court majority did not rely on conservative legal principles, or a close reading of the Constitution, to arrive at its decision.

Breyer’s dissent criticizes the majority’s assertion that the Constitution changed, in a basic way, the nature of state immunity. “The most obvious problem with this argument is that no provision of the Constitution gives States absolute immunity in each other’s courts.”  He continues, observing the vague conservative appeals to what is “implicit” in the Constitution, “embedded … within the constitutional design,” and reflected in “the plan of the Convention.” But – Breyer notes – concepts like these are “highly abstract and difficult to apply,” “invite differing interpretations,” and “suffer the additional disadvantage that they do not actually appear anywhere in the Constitution.”

At any rate, I can find nothing in the “plan of the Convention” or elsewhere to suggest that the Constitution converted what had been the customary practice of extending immunity by consent into an absolute federal requirement that no State could withdraw. None of the majority’s arguments indicates that the Constitution accomplished any such transformation.

In other words, there is no convincing path from textualism or originalism – the conservatives’ purported means of interpreting the Constitution – to the conclusions the majority reaches.

Breyer, like Stevens, then presses his argument about stare decisis (a conservative legal principle virtually by definition): unless there is a compelling reason to overturn a decision, then jurists should refrain from doing so. “While reasonable jurists might disagree about whether Hall was correct, that very fact—that Hall is not obviously wrong—shows that today’s majority is obviously wrong to overrule it.”

And Justice Breyer makes clear that his concern is much broader than this single case. It is one thing to reverse a case because it proved to be impractical, legally obsolete, or when changing facts have made it impossible to apply or justify the old rule. But:

It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.

Constitutional conservatism – divinely inspired traditional culture

In 2014, Ed Kilgore expressed concern at the Republican Party’s “hellish momentum” toward increasingly extreme positions, as ‘establishment’ Republicans adopted the views of the Tea Party. “There’s remarkable near-unanimity in favor of hard-core positions on fiscal matters, the economy, cultural issues, and immigration–and above all a violent resistance to the idea that government can play a positive role in national life other than at the Pentagon.”

And he specifically mentioned the conservative movement’s embrace of “constitutional conservatism.”

… I do worry that the still-emerging ideology of “constitutional conservatism” is something new and dangerous, at least in its growing respectability. It’s always been there in the background, among the Birchers and in the Christian Right, and as an emotional and intellectual force within Movement Conservatism. It basically holds that a governing model of strictly limited (domestic) government that is at the same time devoted to the preservation of “traditional culture” is the only legitimate governing model for this country, now and forever, via the divinely inspired agency of the Founders. That means democratic elections, the will of the majority, the need to take collective action to meet big national challenges, the rights of women and minorities, the empirical data on what works and what doesn’t–all of those considerations and more are so much satanic or “foreign” delusions that can and must be swept aside in the pursuit of a Righteous and Exceptional America. … Some of the moneyed interests bankrolling the GOP and the conservative movement probably just view all the God and Founders talk as a shiny bauble with which to fool the rubes, but others–notably the Kochs–seem to have embraced it as a vehicle for permanent domination of American politics.

A very conservative, aggressively activist Supreme Court

On July 2, 2018 Erwin Chemerinsky, Dean of the UC Berkeley School of Law, in a more scholarly analysis of the Supreme Court (following the 2017-2018 term), focused on the activism of the conservative majority and its fealty to the agenda of the Republican Party:

The just completed Supreme Court term will come to be regarded as the beginning of a new era in constitutional history: a time of a very activist Court that aggressively follows the conservative political agenda. This term was the most conservative since October 1935, when the Supreme Court repeatedly declared unconstitutional key New Deal laws. The 2017–2018 term was a year filled with cases of unusual importance, and the conservative position prevailed in almost every case.

…

What explains the decisions of October term 2017 is not any principle like judicial restraint or originalism, but simply the conservative values of the majority of the justices. The justices were adhering to the vision of the Republican platform. As Justice Kagan expressed in her powerful dissent in Janus v. American Federation, where the Court overruled a 40-year-old precedent and held that non-union members cannot be forced to pay the share of the union dues that support collective bargaining, the Court’s decision was rooted in neither precedent nor sense. The Court ruled for Janus “because it wanted to.”

The dean cites four cases from the Court’s last term decided 5-4 that “reflect a Court following the conservative political agenda, regardless of precedent or the usual conservative desire to adhere to the original understanding of the Constitution.” They are:

  • Janus v. American Federation (overturning a 41-year-old precedent  to end “fair share” contracts, which required employees at union shops, who declined to join the union, to pay a portion of union dues that covered collective-bargaining activities)
  • National Institute of Family and Life Advocates v. Becerra (striking down the California FACT Act, which ensured that religiously-affiliated crisis pregnancy centers, disguised as medical centers, provided women with complete information regarding their options – including access to reproductive health services)
  • Trump v. Hawaii (reversing an appellate court ruling that invalidated Trump’s travel ban)
  • Epic Systems v. Lewis (rejecting employees’ rights to class action suits or class arbitration, contrary to the 1935 National Labor Relations Act, which was upheld by SCOTUS in 1937)

Conservative dreams of a 21st century Lochner Era

For most of our history the Supreme Court has been a powerful conservative – anti-democratic (small ‘d’) – force to suppress change. (The Warren Court of the ’fifities and ’sixties was an anomaly, as was SCOTUS well into the ’seventies, when Roe v. Wade was decided.) During the Lochner Era (which scholars generally agree began by the last decade of the 19th century and ended in 1937), the Supreme Court struck down hundreds of federal, state, and local laws – deemed to interfere with “freedom of contract” /economic liberty /the free market – enacted to protect workers and consumers.

Lochner v. New York (the case that gave the Lochner Era its name) struck down as unconstitutional a labor law that limited bakery workers’ hours to 10 hours a day and 60 hours a week.  During this era, the Court struck down child labor laws, minimum wage laws, bans on “yellow dog” contracts, other laws to assist in union-organizing, and legislation to regulate industry, and – of course – significant New Deal measures introduced by Franklin Delano Roosevelt in his first term as president.

Chemerinsky predicts that the activist justices that form the Court’s majority – “whose jurisprudence is based on the Republican platform” – will vote to overrule:

  • Roe v. Wade,
  • affirmative action, and
  • the exclusionary rule when police violate a suspect’s Constitutional rights.

He mentions the likely suppression of LGBT rights and rejection of equal rights challenges to partisan gerrymandering as well.

Chemerinsky doesn’t venture a prediction about decades of rulings since the New Deal permitting the regulation of business. But a number of libertarian legal scholars and Senator Rand Paul have argued that Lochner v. New York was correctly decided, because it freed business from the regulatory state.  

Liberals may think that the Roberts Court is already too willing to strike down laws and regulations — for instance, overturning campaign finance restrictions and part of Obamacare. But Paul wants the justices to go much further. He sharply criticized Chief Justice John Roberts for failing to overturn the full health law, saying, “Justice Roberts laid down the gauntlet and said judicial restraint means the majority can do whatever they want, basically.”

The immediate future of the Supreme Court – and of U.S. District and Circuit Courts – will more closely resemble the Court of the Lochner Era, than the Warren Court (and several that followed closely behind, when Republican-appointed justices – Stevens, Souter, Powell, O’Connor, and Kennedy – at least occasionally sided with the liberals). The authority of many federal agencies that make and enforce rules – the Environmental  Protection Agency, the Federal Communications Commission, the Federal Trade Commission, the Security and Exchange Commission, the Consumer Financial Protection Bureau, the Federal Election Commission … to list only a handful – may be challenged by an activist Supreme Court majority. We will be living a nightmare for years to come.

(Photo: wikipedia.)

Democracy, Off the Rails, Republicans, Tribalism

“And as we all know, in the United States political system of the early 2000s, what goes around comes around.” — Brett Kavanaugh

“This confirmation process has become a national disgrace. The Constitution gives the Senate an important role in the confirmation process, but you have replaced advice and consent with search and destroy.

Since my nomination in July, there’s been a frenzy on the left to come up with something, anything to block my confirmation. Shortly after I was nominated, the Democratic Senate leader said he would, quote, “oppose me with everything he’s got.” A Democratic senator on this committee publicly — publicly referred to me as evil — evil. Think about that word. It’s said that those who supported me were, quote, “complicit in evil.” Another Democratic senator on this committee said, quote, “Judge Kavanaugh is your worst nightmare.” A former head of the Democratic National Committee said, quote, “Judge Kavanaugh will threaten the lives of millions of Americans for decades to come.”

I understand the passions of the moment, but I would say to those senators, your words have meaning. Millions of Americans listen carefully to you. Given comments like those, is it any surprise that people have been willing to do anything to make any physical threat against my family, to send any violent e-mail to my wife, to make any kind of allegation against me and against my friends. To blow me up and take me down.

You sowed the wind for decades to come. I fear that the whole country will reap the whirlwind.

The behavior of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment. But at least it was just a good old-fashioned attempt at Borking.

Those efforts didn’t work. When I did at least OK enough at the hearings that it looked like I might actually get confirmed, a new tactic was needed.

Some of you were lying in wait and had it ready. This first allegation was held in secret for weeks by a Democratic member of this committee, and by staff. It would be needed only if you couldn’t take me out on the merits.

When it was needed, this allegation was unleashed and publicly deployed over Dr. Ford’s wishes. And then — and then as no doubt was expected — if not planned — came a long series of false last-minute smears designed to scare me and drive me out of the process before any hearing occurred.

Crazy stuff. Gangs, illegitimate children, fights on boats in Rhode Island. All nonsense, reported breathlessly and often uncritically by the media.

This has destroyed my family and my good name. A good name built up through decades of very hard work and public service at the highest levels of the American government.

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. And millions of dollars in money from outside left-wing opposition groups.

This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades. This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions, from serving our country.

And as we all know, in the United States political system of the early 2000s, what goes around comes around.”

—Brett Kavanaugh, speaking before the U.S. Senate Judiciary Committee on September 27, 2018.

Rancorous, aggrieved, conspiratorial. Brett Kavanaugh’s tribal embrace of Republican Party talking points and his manic rage toward Democrats, Democratic Senators on the Judiciary Committee, “the left,” “left-wing opposition groups,” and the Clintons couldn’t be clearer.

Until 2006, when he was placed on the appellate court by George W. Bush, Kavanaugh was a partisan political operative. His appointment was a reward for his loyal partisanship. Kavanaugh’s career highlights up to that point: “He worked for independent counsel Kenneth Starr and laid out the grounds in 1998 for impeaching President Bill Clinton; he acted on behalf of Bush in the Florida recount in the 2000 presidential race; he promoted conservative judicial nominees as Bush’s associate counsel; and as Bush’s staff secretary, he helped shape presidential policies.” Oh, and he was also “pro bono counsel in the Elián González affair.”

Clarence Thomas – who also faced credible charges of sexual misconduct at the time of his nomination and the only member of the majority in Bush v. Gore still on the court – and Samuel Alioto – who mouthed “Not true” during President Obama’s 2010 State of the Union – may harbor partisan grievances toward Democrats and almost certainly identify with the Republican Party as newly installed Justice Kavanaugh does. They may be, as is sometimes said of members of the court, ‘politicians in robes.’ But neither of them, nor any other SCOTUS nominee in our history, has directed such bitter acrimony towards the opposition political party at a confirmation hearing – or any other public setting.

In his written testimony, Kavanaugh crossed a line that has never before been crossed by a Justice of the Supreme Court. No list of Republican grievances – even stretching back more than three decades to the Senate’s rejection of Robert Bork’s nomination in 1987; no complaints about process, or timing, or the presumption of innocence; no excuses that critics have “destroyed” his family; no claims of a grand Democratic conspiracy; no appeals to Kavanaugh’s conduct on the appellate court; no nod to his judicial qualifications – no whataboutism of any kind can change the simple, evident fact that Kavanaugh’s words and deportment were unprecedented.

At a time of extraordinary political polarization, on the plain meaning of his words and straightforward observation of his demeanor, Kavanaugh harbors deep animosity toward the opposition political party. With his confirmation by the Republican majority in the U.S. Senate, he brings illegitimacy to the nation’s highest court.

Count this as another institutional and governing norm that Republicans have deliberately trashed for (what is often short-term political advantage, but in this case is long-term – perhaps several generations’ long) political advantage.

Image is a screen grab from the C-SPAN video of Kavanaugh’s testimony.