citing Scalia’s belief that “in the eyes of government, we are just one race here. It is American.”
.. Another worry about the new court is that it may be too deferential to executive power. Mr Kavanaugh, who spent years working for the independent counsel’s team that investigated Bill Clinton in the mid 1990s, later decided such investigations impinged unreasonably on a president’s time and attention. During a panel discussion in 1998 he indicated that the law protects a sitting president from indictment. In a 2009 law-review article, he proposed that Congress pass a law protecting presidents from criminal investigations and civil suits while they were in office.
.. Eric Segall of Georgia State University, the author of a forthcoming book on originalism, worry that originalist language is often used by justices to uphold positions quite at odds with the philosophy’s seemingly hands-off tenets. “Justices use the rhetoric of originalism to mask political judgment,” Mr Segall says. Past proponents of originalism argued that courts should strike down laws only in the case of clear textual error. Today, argues Mr Segall, proponents of originalism want to “shrink the federal government and deregulate the economy, but there is no reasonable originalist argument for that kind of strong judicial interference with our political system.”
.. Mr Roberts who has four justices to his left and four to his right. Though he is without doubt a man of the right, he also evinces caution and a sense of constitutional propriety. He voted twice with the court’s liberal bloc to uphold Mr Obama’s Affordable Care Act, in part, perhaps, because he felt that the court should not throw out a major piece of legislation for which the president had a clear mandate.
.. Two of the court’s liberals are in their eighties; if one dies, or is forced by ill health to retire, before the next election, and Mr Trump were to fill the void, the median position might well move rightward to Mr Gorsuch, hardening the court’s ideological tenor.
.. Brian Fallon, chief spokesman for Hillary Clinton’s presidential campaign in 2016, recently started Demand Justice, a court-focused pressure group. He wants his party to be as ruthless and court-focused as the Republicans have been. Democrats, he says, need to “get over the idea that the courts are anything other than a place where a power struggle is taking place.” If another seat does come up soon, and if the Democrats retake the Senate in this year’s elections, they will probably stonewall Mr Trump’s nominee, just as Mr McConnell did Mr Obama’s.
.. With ample justification, Democrats want revenge for the theft of Mr Garland’s seat, and how it paved the way for Mr Trump’s ascent to the White House. Faced with a conservative court that could frustrate their ambitions for decades, some have begun whispering about court packing—adding justices to the court should they retake Congress and the White House. No doubt that will outrage Republicans, and lead them to do the same the next time power swings back. Both sides will prize ideological purity over competence and independence of mind.
Down this path lies the dark day when another part of the government takes the decisive, perhaps irretrievable, step of ignoring a Supreme Court ruling. And at that point the constitution’s checks and balances come tumbling down.
Bob Bauer: Lawfare
America Has Gone Off the Rails. Steven Brill Sees Ways to Get It Back on Track.
According to Gallup, in the first week of January 2004 more than half of surveyed Americans were satisfied with the direction of the country. Within a few weeks, however, that number had fallen below 50 percent. It has never recovered. Since the 2008 financial crisis, it has not cracked 40 percent.
.. Brill describes a slow-motion process of perverse meritocracy in which, as one law professor tells him, “the elites have become so skilled and so hardworking that they are able to protect each other better than ever before.” Or, as Brill labels it, “Moat Nation.”
.. Brill focuses on the legal shifts and stalemates that ushered in the country’s current predicament
.. The rise of executive compensation practices linked to stock prices encouraged executives to prioritize short-term profits over long-term investments. A series of Supreme Court cases, ending with Citizens United, enabled corporate speech to play a powerful role in national politics. The growth of super PACs and lobbyists in Washington guarantees that any piece of appropriate regulation will be watered down — first in Congress and then in the implementation stage.
.. The federal government’s approach to fraudulent financial firms has shifted from the criminal prosecution of executives to the levying of fines.
.. the number of times the phrase “unintended consequences” appears in the book. Many of the legal and regulatory changes that Brill excoriates have counterintuitive beginnings. Who helped spearhead the growth of the commercial speech movement? The consumer advocate Ralph Nader, who sued the Commonwealth of Virginia to allow pharmacies to advertise drug prices. “Talk about boomerangs,”
.. the very first political action committee was created in 1943 by a labor union.
.. efforts to bring more minority members to Congress as “another reform effort that boomeranged,” because minority Democrats allied with Republicans to rewrite congressional districts and eviscerate districts held by white Democrats.
.. Brill blames the tortoise-like pace of government rule-writing on due process run amok.
.. Brill argues that interest groups have weaponized due process to guarantee gridlock.
.. In almost all of “Tailspin,” a well-intentioned liberal reform goes badly off the rails.
.. Brill never quite makes the connection between laws and norms.
.. many of the trends that Brill identifies, like political polarization, have their origins in the erosion of norms, not laws, and the real question is whether Americans can trust one another enough not to abuse less legalistic systems.
.. On this point, Steven Levitsky and Daniel Ziblatt’s “How Democracies Die” is probably more instructive.
It Took a Village to Raise Kavanaugh
Kavanaugh is the product of a community. He is the product of a conservative legal infrastructure that develops ideas, recruits talent, links rising stars, nurtures genius, molds and launches judicial nominees. It almost doesn’t matter which Republican is president. The conservative legal infrastructure is the entity driving the whole project. It almost doesn’t even matter if Kavanaugh is confirmed or shot down; there are dozens more who can fill the vacancy, just as smart and just as conservative.
This community didn’t just happen; it was self-consciously built. If you want to understand how to permanently change the political landscape, it’s a good idea to study and be inspired how it was done.
Back in the 1970s, the legal establishment was liberal. Yale Law School was the dynamic center of liberal legal thinking. Lawyers who had begun their careers during the New Deal were at the height of their power and prestige. The Ford Foundation funded a series of legal aid organizations to advance liberal causes and to dominate the law schools.
.. Business groups funded a series of conservative public interest law firms. But the business groups had no intellectual heft, they were opportunistic and they had zero moral appeal.
.. First came the critique. In 1980, Michael Horowitz wrote a seminal report for the Sarah Scaife Foundation, explaining why conservatives were impotent in the legal sphere. Horowitz suggested, for example, that conservative legal organizations pick cases in which they represented underdogs against big institutions associated with the left.
.. Then came the intellectual entrepreneurs. Aaron Director of the University of Chicago Law School inspired many of the thinkers — like Ronald Coase and Richard Posner — who would create the law and economics movement.
.. This movement was funded by groups like the John M. Olin Foundation, which was willing to invest for the long term and not worry about “metrics” or “measurable outcomes.”
.. Then came the network entrepreneurs. In 1982, a group of law students including Lee Liberman Otis, David McIntosh and Steven Calabresi founded the Federalist Society, which was fundamentally a debating society.
.. The Federalist Society spread to other law schools and beyond pretty quickly. It turned into a friendship community and a professional network, identifying conservative law students who could be promoted to fill clerkships.
.. the key features of the Federalist Society were the limits it would put on itself. It did not take stands on specific policy issues. It did not sponsor litigation on behalf of favorite causes. It did not rate judicial nominees the way the American Bar Association did.
.. Otis, McIntosh and Calabresi all went to work in the Reagan administration. They are now part of a vast army of conservative legal cadres, several generations deep, working throughout the system or at organizations like the Center for Individual Rights and the Institute for Justice.
.. Trump bucked the conservative foreign policy establishment and the conservative economic establishment, but he’s given the conservative legal establishment more power than ever before, which is why there are so few never-Trumpers in legal circles.
.. The members often break down on libertarian versus conservative lines, or, as we saw in the behind the scenes jockeying recently, between social conservatives (for Amy Coney Barrett) and establishment conservatives (for Brett Kavanaugh).