It’s time for liberals to get over Citizens United

Repealing the controversial decision is a pipe dream. And there are more promising avenues for campaign-finance reform.

From the moment the 2010 Supreme Court ruling Citizens United v. FEC came down, it scandalized liberals. The decision heralded the “hostile corporate takeover of our democratic process,” Rep. Rosa DeLauro (D-CT) thundered at the time.

In 2017, a commissioner of the Federal Election Commission resigned, claiming “since the Supreme Court’s Citizens United decision, our political campaigns have been awash in unlimited, often dark money.”* This was the animating sentiment of Bernie Sanders’s 2016 campaign for president; he even went so far as to claim that billionaires are simply “buying elections.”

This idea has given rise to a new liberal battle cry: Repeal Citizens United! Unfortunately, that tactic is naive and misguided, and relies on a misunderstanding of the law and politics surrounding the case. As we approach the 2018 congressional elections — and beyond that, the crucial presidential election of 2020 — it is more vital than ever to have a clear view of where this ruling fits into the mosaic of campaign finance law.

Such understanding will, in turn, shine light on what can be done to make the election process fairer and make politicians more responsive to all their constituents, not just the big spenders.

Some cities and states are already experimenting with programs that strengthen the voices of ordinary voters. Building on such efforts is likely to have far greater effects than continuing to demonize Citizens, whose logic is defensible on First Amendment grounds.

Most widespread in liberal circles is the idea that Citizens opened the floodgates to massive amounts of corporate spending in politics. But as many legal scholars have argued, the floodgates were already open. Citizens is not responsible for the massive amounts of money showered on favored candidates. Nor is it responsible for the rise of so-called dark money in politics.

Citizens didn’t upend our campaign finance system. It was a logical next step, given past court decisions.

Let’s put the hated decision into context. The inundation of elections with private cash is not the result of Citizens but rather was facilitated by the 1976 decision Buckley v. Valeo. That case established the legal framework sanctioning billions of dollars of independent private campaign spending. In it, the Court ruled that limits on campaign donations — direct donations to candidates — are constitutional but said it was unconstitutional to limit non-donation expenditures, such as independently funded advertisements.

Such independent spending — which cannot be coordinated with candidates, according to the Court — was protected under the First Amendment as not just speech but political speech. The idea is that money is a necessary instrument for supporting a political candidate, whether it’s paying for yard signs or taking out an ad in the newspaper.

Not unreasonably, the Court ruled that limitations on independent expenditures would constitute limitations on one’s ability to support a candidate through any number of media. Placing a dollar limit on such expenditures would arbitrarily prevent certain kinds of campaign support simply by the fact of how expensive they are.

Our inability to trace campaign donations to their source — the dark money issue — is the result of the lack of federal regulations to make disclosure mandatory. And such regulations are legal; the Court said as much in Citizens, with eight of nine justices agreeing on that point! The only thing standing in the way of transparency is congressional stonewalling. In 2010, Republican senators defeated a disclosure law 59 to 39, which would have made it more difficult for donors to use legal loopholes to hide their identities.

Citizens simply has not had the seismic legal impact that many think. Since Buckley protected money as speech, the only question was whether corporations were legitimate speakers. It may surprise some to hear, but the Court had already answered this question in 1978. In First National Bank of Boston v. Bellotti, the Supreme Court recognized a corporate right to free speech, concluding that the value of speech in the course of political debate does not depend on the identity of the speaker. Citizens simply followed the precedent of these two cases.

So when liberals intone that “corporations aren’t people,” thinking they are making a knock-down argument against Citizens, they miss the point. Citizens did not make corporations persons. And corporations do not need to be persons to receive First Amendment protections. Citizens upheld the liberty, provided by Bellotti, of corporations to speak, and they speak under the rules provided by Buckley.

The details were debated by expert lawyer Floyd Abrams and First Amendment scholar Burt Neuborne not long after Citizens came down. Abrams noted that even the liberal Justice John Paul Stevens, dissenting, recognized that the Court has “long since held that Corporations are covered by the First Amendment.”

Neuborne, in response, argued that corporations lack dignity and a conscience, which he thinks underpin the human right to free speech. But Justice Kennedy, writing for the slim five-justice majority, cited the long history of First Amendment protections for corporations. The Court had sided heavily with the Abrams view.

The Court seems inclined to limit the definition of “corruption” to explicit bribery

The only remaining question was whether there could be a justification for the government’s curtailing of that speech. Abridging political speech falls under the strictest category of judicial scrutiny; any law that does so must be justified by a “compelling state interest.”

One such objective, some suppose, is stopping corruption, a clear threat to the integrity of Congress. And indeed, in Randall v. Sorrell (2006), the Court reaffirmed that combating “corruption” rises to the level of a compelling state interest. But in Citizens, Justice Kennedy said the only kind of corruption that would count in this context is the most direct kind: “quid pro quo” corruption, which covers only vote-buying bribery.

No such vote buying was at issue in Citizens, since the controversy centered on the release of a privately funded campaign video during an advertising “blackout” period. Such off-limits periods, established by the McCain-Feingold legislation, paid insufficient heed to the Court’s precedents on money as speech and the high bar for restricting political speech.

In response to Kennedy’s narrow conception of corruption, Harvard Law professor and onetime presidential contender Lawrence Lessig has advocated for a broader idea of corruption. In his book Republic, Lost, Lessig spells out his notion of “dependence corruption,” whereby Congress is unduly responsive to big donors because they are dependent on them for campaign money.

He takes pains to argue on “originalist” grounds, hoping to appeal to the conservative majority of the Court, who attempt to cleave closely to the meaning of words as they are found in documents at the time of the Constitution’s drafting. Alas, his arguments have largely fallen on deaf judicial ears.

Where does that leave us?

We are almost certainly stuck with Citizens, not to mention Buckley and Bellotti. The major hope of many concerned lawyers and academics in the runup to the 2016 election has been dashed: the hope of filling the late Justice Antonin Scalia’s seat with a more liberal justice who might help reverse the decision. Instead, reformers got Neil Gorsuch.

So even if there were a stronger legal argument to be made against Citizens, that argument won’t attract enough votes in the Supreme Court. Desperation has led some, like Sanders, to push for a constitutional amendment limiting corporate campaign spending. But beyond being a pipe dream, given the institutional challenges, this tactic fails to take seriously the intricate First Amendment questions at issue.

The upshot of the Sanders campaign is its demonstration of the strength of a candidacy funded by small donations. As a candidate, Sanders rejected Super PAC funding in favor of donations averaging well under $100. Since Super PACs are the primary means individuals and corporations funnel their money to campaigns, it is historically noteworthy that a candidate without such support was capable of seriously contending for the presidency.

The lessons to draw from Sanders’s campaign is not that the system is healthy. Instead, we should conclude that the medicine to cure it may take the form of enabling citizens to make more Bernie-size donations. As of late, there has been an uptick in under-$200 donations to congressional races. In order to make such donations a staple in our democratic process, they should be supported by legislation.

Such a program has been introduced in Seattle, which gives away “democracy vouchers,”which could serve as a national model.

The basic idea is simple: Every eligible voter in Seattle receives $100 in vouchers, which they can freely donate to campaigns in the local city elections. This means every voter can participate in the pre-election process by using their money to “speak up” for candidates they endorse, and it enables lesser-known candidates to find financial support without bending the knee before big money special interests.

Theoretically, this ensures that every citizen has a baseline level of equal participation in the political process. It expands our understanding of political equality beyond “one person, one vote” to a wider notion of equal opportunity for electoral participation.

The local focus is a crucial first step to reshaping public participation in campaigns. As ACLU national legal director David Cole has argued, the most likely path to substantial federal campaign finance reform is by winning small victories in cities and states. Fostering state- and local-level initiatives accomplishes several things.

First, it draws more citizens into the debate over the proper role of money in politics — an essential step toward a sustained national conversation.

Second, it allows for political and legal experimentation. Because the Supreme Court is unpredictable, especially given the uncertainty of Justice Kennedy’s swing vote, attempting several strategies at once for public funding increases the chances that a constitutionally passable version is found.

More experiments also mean more models that can be used as contrasts to the federal system, making the weaknesses of the federal system all the more clear.

Third, such an approach will spark important legal work, which is far from a purely academic matter. By pursuing ballot initiatives and enacting local laws that address money in politics, we will invite legal challenges by entrenched, moneyed interests. This forces judges to issue ever more opinions on what is constitutional, justifying themselves along the way.

Higher courts will receive appeals and further scrutinize this reasoning. This, in turn, will attract legal academics like moths to a flame, whose work will be cited by advocates and courts.

All of this will arm the public with constitutional arguments to defend the integrity of our democracy.

There is no guarantee that all of this will be enough to counterbalance the power of big money in elections. But we can hope that bottom-up political activism will light a fire underneath the complacent rump of Congress. Increased national dialogue, successful local and state initiatives, and a proliferation of academic criticism of current law and policy all generate real political pressure.

Signs of hope

Disclosure laws are not out of reach in the coming years, and increased participation in local elections, subsidized by voucher systems, may usher in increased voter turnout for national elections. Higher turnout has been shown to heavily favor one of the two major political parties. Hint: It’s not the Republicans.

Liberals should take note of the recent special election in Pennsylvania’s 18th District. Outside donations for the Republican candidate, Rick Saccone, were more than five times larger than for the Democrat, Conor Lamb. Yet Lamb pulled off the upset, showing money isn’t everything. He drew strength from a well-mobilized, engaged electorate.

Such vigor can be stimulated in elections across the country — particularly if we provide concrete, monetary means for voters to participate in the selection of their representatives.

Rather than continuing to rail against Citizens United, reformers should pursue strategies that increase democratic participation and encourage voter turnout.

 

Citizens United v. Federal Election Commission Oral Reargument – September 09, 2009

Anthony M. Kennedy

But under your position, if corporations A, B, and C, are called to Washington every Monday morning by a high-ranking administrative official or a high-ranking member of the Congress with a committee chairmanship and told to tow the line and to tell their directors and their shareholders what the policy ought to be, some other corporation can’t object to that during the election cycle.

The government silences a corporate objector, and those corporations may have the most knowledge of this on the subject.

Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election.

 

.. Theodore B. Olson

What Bellotti also said is — and I think this is also in many decisions of this Court — the inherent worth of speech in terms of its capacity for informing the public does not depend upon the identity of the source, whether corporation, association, union, or individual.

 

.. Theodore B. Olson

–You said that repeatedly, including most recently in the Wisconsin Right to Life case.

And it first appeared in Buckley itself.

The distinction is very hard to draw between the interest that the speaker is addressing and whether it’s a candidate or an issue, because issues are wrapped up in candidates.

The corporation interest and the interests that its fiduciary officers are representing when it speaks on behalf of the corporation–

John Paul Stevens

I don’t think you are correct to say the Court said there was no distinction.

It said the distinction requires the use of magic words.

And that’s what they said in Wisconsin Right to Life, too.

Both of them said there is a distinction.

Theodore B. Olson

–Well, but the words–

John Paul Stevens

It’s difficult to draw in some cases, but nobody said there is no distinction that I am aware of.

Theodore B. Olson

–Well, what the Court — to use — to use the words of the Court, which occurred repeatedly, is that the distinction dissolves impractical application.

That, Justice Stevens, I think addresses the very commonsense point that when you are addressing an issue, whether you are addressing a referendum matter, whether it is a proposed legislation or a candidate that is going to raise taxes on the corporation, those distinctions dissolve.

It’s all First Amendment freedom.

.. Elena Kagan

Mr. Chief Justice and may it please the Court: I have three very quick points to make about the government position.

The first is that this issue has a long history.

For over 100 years Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment.

Number two–

Antonin Scalia

Wait, wait, wait, wait.

We never questioned it, but we never approved it, either.

And we gave some really weird interpretations to the Taft-Hartley Act in order to avoid confronting the question.

Elena Kagan

–I will repeat what I said, Justice Scalia: For 100 years this Court, faced with many opportunities to do so, left standing the legislation that is at issue in this case — first the contribution limits, then the expenditure limits that came in by way of Taft-Hartley — and then of course in Austin specifically approved those limits.

Antonin Scalia

I don’t understand what you are saying.

I mean, we are not a self — self-starting institution here.

We only disapprove of something when somebody asks us to.

And if there was no occasion for us to approve or disapprove, it proves nothing whatever that we didn’t disapprove it.

Elena Kagan

Well, you are not a self-starting institution.

But many litigants brought many cases to you in 1907 onwards and in each case this Court turns down, declined the opportunity, to invalidate or otherwise interfere with this legislation.

 

.. Elena Kagan

Well, I think Justice Stevens was right in saying that the expenditure limits that are in play in this case came into effect in 1947, so it’s been 60 years rather than 100 years.

But in fact, even before that the contribution limits were thought to include independent expenditures, and as soon as Congress saw independent expenditures going on Congress closed what it perceived to be a loophole.

So in fact for 100 years corporations have made neither contributions nor expenditures, save for a brief period of time in the middle 1940’s, which Congress very swiftly reacted to by passing the Taft-Hartley Act.

Now, the reason that Congress has enacted these special rules — and this is the second point that I wanted to make–

 

.. Elena Kagan

I would say either the quid pro quo interest, the corruption interest or the shareholder interest, or what I would say is a — is something related to the shareholder interest that is in truth my view of Austin, which is a view that when corporations use other people’s money to electioneer, that is a harm not just to the shareholders themselves but a sort of broader harm to the public that comes from distortion of the electioneering that’s done by corporations.

Antonin Scalia

Let’s — let’s talk about overbreadth.

You’ve — let’s assume that that is a valid interest.

What percentage of the total number of corporations in the country are not single shareholder corporations?

The local hairdresser, the local auto repair shop, the local new car dealer — I don’t know any small business in this country that isn’t incorporated, and the vast majority of them are sole-shareholder-owned.

Now this statute makes it unlawful for all of them to do the things that you are worried about, you know, distorting other — the interests of other shareholders.

That is vast overbreadth.

.. Antonin Scalia

Congress has a self-interest.

I mean, we — we are suspicious of congressional action in the First Amendment area precisely because we — at least I am — I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents.

Now is that excessively cynical of me?

I don’t think so.

Antonin Scalia

Congress has a self-interest.

I mean, we — we are suspicious of congressional action in the First Amendment area precisely because we — at least I am — I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents.

Now is that excessively cynical of me?

I don’t think so.

Elena Kagan

–I think, Justice Scalia, it’s wrong.

In fact, corporate and union money go overwhelmingly to incumbents.

This may be the single most self-denying thing that Congress has ever done.

If you look — if you look at the last election cycle and look at corporate PAC money and ask where it goes,

Antonin Scalia

Congress has a self-interest.

I mean, we — we are suspicious of congressional action in the First Amendment area precisely because we — at least I am — I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents.

Now is that excessively cynical of me?

I don’t think so.

Antonin Scalia

Congress has a self-interest.

I mean, we — we are suspicious of congressional action in the First Amendment area precisely because we — at least I am — I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents.

Now is that excessively cynical of me?

I don’t think so.

Elena Kagan

–I think, Justice Scalia, it’s wrong.

In fact, corporate and union money go overwhelmingly to incumbents.

This may be the single most self-denying thing that Congress has ever done.

If you look — if you look at the last election cycle and look at corporate PAC money and ask where it goes, it goes ten times more to incumbents than to challengers, and in the prior election cycle even more than that.

And for an obvious reason, because when corporations play in the political process, they want winners, they want people who will produce outcomes for them, and they know that the way to get those outcomes, the way to get those winners is to invest in incumbents, and so that’s what they do.

As I said, in double digits times more than they invest in challengers.

So I think that that — that that rationale, which is undoubtedly true in many contexts, simply is not the case with respect to this case.

Anthony M. Kennedy

But under your position, if corporations A, B, and C, are called to Washington every Monday morning by a high-ranking administrative official or a high-ranking member of the Congress with a committee chairmanship and told to tow the line and to tell their directors and their shareholders what the policy ought to be, some other corporation can’t object to that during the election cycle.

The government silences a corporate objector, and those corporations may have the most knowledge of this on the subject.

Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election.

Elena Kagan

Well–

Anthony M. Kennedy

When other corporations, via — because of the very fact you just point out, have already been used and are being used by the government to express its views; and you say another corporation can’t object to that.

Elena Kagan

–Well, to the extent, Justice Kennedy, that you are talking about what goes on in the halls of Congress, of course corporations can lobby members of Congress in the same way that they could before this legislation.

What this legislation is designed to do, because of its anticorruption interest, is to make sure that that lobbying is just persuasion and it’s not coercion.

But in addition to that, of course corporations have many opportunities to speak outside the halls of Congress.

Elena Kagan

A lot of them do, which is a suggestion about how corporations engage the political process and how corporations are different from individuals in this respect.

You know, an individual can be the wealthiest person in the world but few of us — maybe some — but few of us are only our economic interests.

We have beliefs, we have convictions; we have likes and dislikes.

Corporations engage the political process in an entirely different way and this is what makes them so much more damaging.

John G. Roberts, Jr.

Well, that’s not — I’m sorry, but that seems rather odd.

A large corporation just like an individual has many diverse interests.

A corporation may want to support a particular candidate, but they may be concerned just as you say about what their shareholders are going to think about that.

They may be concerned that their shareholders would rather they spend their money doing something else.

The idea that corporations just are different than individuals in that respect, I just don’t think holds up.

Elena Kagan

Well, all I was suggesting, Mr. Chief Justice, is that corporations have actually a fiduciary obligation to their shareholders to increase value.

That’s their single purpose, their goal.

 

John G. Roberts, Jr.

So if a candidate — take a tobacco company, and a candidate is running on the platform that they ought to make tobacco illegal, presumably that company would maximize its shareholders’ interests by opposing the election of that individual.

Elena Kagan

But everything is geared through the corporation’s self-interest in order to maximize profits, in order to maximize revenue, in order to maximize value.

Individuals are more complicated than that.

So that when corporations engage the political process, they do it with that set of you know, blinders — I don’t mean it to be pejorative, because that’s what we want corporations to do, is to–

John G. Roberts, Jr.

Well, I suppose some do, but let’s say if you have ten individuals and they each contribute $1,000 to a corporation, and they say,

“we want this corporation to convey a particular message. “

why can’t they do that, when if they did that as partnership, it would be all right?

 

Elena Kagan

–Well, it sounds to me as though the corporation that you were describing is the corporation of a kind we have in this case, where one can assume that the members all sign on to the corporation’s ideological mission, where the corporation in fact has an ideological mission.

Antonin Scalia

General Kagan, most — most corporations are indistinguishable from the individual who owns them, the local hairdresser, the new auto dealer — dealer who has just lost his dealership and — and who wants to oppose whatever Congressman he thinks was responsible for this happening or whatever Congressman won’t try to patch it up by — by getting the auto company to undo it.

There is no distinction between the individual interest and the corporate interest.

And that is true for the vast majority of corporations.

Elena Kagan

Well–

Antonin Scalia

Yet this law freezes all of them out.

Elena Kagan

–To the extent that we are only talking about single shareholder corporations, I guess I would ask why it’s any burden on that single shareholder to make the expenditures to participate in the political process in the way that person wants to outside the corporate forum?

So single shareholders aren’t suffering any burden here; they can do everything that they could within the corporate form, outside the corporate form.

They probably don’t get the tax break that they would get inside the corporate form, but I’m not sure anything else is very different.

Antonin Scalia

Oh, he wants to put up a sign–

John Paul Stevens

Ultra Vires would take care of about 90 percent of the small corporations that Justice Scalia is talking about.

They can’t just — they can’t even give money to charities sometimes because of Ultra Vires.

Giving political contributions is not typical corporate activity.

 

.. Stephen G. Breyer

Is — I — I remember spending quite a few days one summer reading through 1,000 pages of opinion in the D.C. Circuit.

And I came away with the distinct impression that Congress has built an enormous record of support for this bill in the evidence.

And my recollection is, but it is now a couple of years old, that there was a lot of information in that which suggested that many millions of voters think, at the least, that large corporate and union expenditures or contributions in favor of a candidate lead the benefited political figure to decide quite specifically in favor of the — of the contributing or expending organization, the corporation or the union.

Elena Kagan

Yes, that’s–

Stephen G. Breyer

Now, it was on the basis of that, I think, that this Court upheld the law in BCRA.

But we have heard from the other side there isn’t much of a record on this.

So, if you could save me some time here, perhaps you could point me, if I’m right, to those thousand pages of opinion and tens of thousands of underlying bits of evidence where there might be support for that proposition?

Elena Kagan

–Yes, that’s exactly right, Justice Breyer, that in addition to just the 100-year-old judgment that Congress believes this is necessary, that very recently members of Congress and others created a gigantic record showing that there was corruption and that there was the appearance of corruption.

And in that record, many times senators, former senators talk about the way in which fundraising is at the front of their mind in everything that they do the way in which they grant access, the way in which they grant influence, and the way in which outcomes likely change as a result of that fundraising.

Stephen G. Breyer

BCRA has changed all that.

John G. Roberts, Jr.

Counsel, could I ask, it seems — to your shareholder protection rationale, isn’t it extraordinarily paternalistic for the government to take the position that shareholders are too stupid to keep track of what their corporations are doing and can’t sell their shares or object in the corporate context if they don’t like it?

Elena Kagan

I don’t think so, Mr. Chief Justice.

I mean, I, for one, can’t keep tack of what my — where I hold–

John G. Roberts, Jr.

Well, you have a busy job.

You can’t expect everybody to do that.

[Laughter]

Elena Kagan

–It’s not that — it’s not that I have a busy job.

John G. Roberts, Jr.

But it is extraordinary — I mean, the — the idea and as I understand the rationale, we — we the government, big brother, has to protect shareholders from themselves.

They might give money, they might buy shares in a corporation and they don’t know that the corporation is taking out radio ads.

John G. Roberts, Jr.

So it is — I mean, I understand.

So it is a paternalistic interest, we the government have to protect you naive shareholders.

Elena Kagan

–In a world in which most people own stock through mutual funds, in a world in which people own stock through retirement plans in which they have to invest, they have no choice, I think it’s very difficult for individual shareholders to be able to monitor what each company they own assets in is doing or even to know the extent of the–

Ruth Bader Ginsburg

–In that respect, it’s unlike the union, because the — the worker who does not want to affiliate with a union cannot have funds from his own pocket devoted to political causes.

But there is no comparable check for corporations.

Elena Kagan

–That’s exactly right, Justice Ginsburg.

In the union context, of course, it’s a constitutional right that the unions give back essentially the funds that any union member or employee in the workplace does not want used for electoral purposes.

The government has to keep an eye on their interests.

Elena Kagan

A Mar-a-Lago Weekend and an Act of God: Trump’s History With Deutsche Bank

At Deutsche Bank, Mr. Offit’s mandate was to lend money to big real estate developers, package the loans into securities and sell the resulting bonds to investors. He said in an interview that one way to stand out in a crowded market was to make loans that his rivals considered too risky.

In 1998, a broker contacted him to see if he would consider lending to a Wall Street pariah: Mr. Trump, who was then a casino magnate whose bankruptcies had cost banks hundreds of millions of dollars.

Mr. Offit took the meeting.

A few days later, Mr. Offit’s secretary called him. “Donald Trump is in the conference room,” she whispered. Mr. Offit said he rushed in, expecting to find an entourage. Mr. Trump was alone.

He was looking for a $125 million loan to pay for gut renovations of 40 Wall Street, his Art Deco tower in Lower Manhattan. Mr. Offit was impressed by the pitch, and the loan sailed through Deutsche Bank’s approval process.

Mr. Trump seemed giddy with gratitude, Mr. Offit recalled. He took Mr. Offit golfing. He flew him by helicopter to Atlantic City for boxing matches. He wrote a grateful note to Sidney Offit for having “a great son!”

Mr. Offit commissioned a detailed model of 40 Wall Street. A golden plaque on its pedestal bore the names and logos of Deutsche Bank and the Trump Organization. Mr. Offit gave one to Mr. Trump and kept another in his office.

Mr. Trump soon came looking for $300 million for the construction of a skyscraper across from the United Nations headquarters. The loan was approved. He wanted hundreds of millions more for his Trump Marina casino in Atlantic City. Mr. Offit pledged to line up cash for that, too.

Not long after, Edson Mitchell, a top bank executive, discovered that the signature of the credit officer who had approved the Trump Marina deal had been forged, Mr. Offit said. (Mr. Offit was never accused of forgery; the loan never went through.)

Mr. Offit was fired months later. He said it was because Mr. Mitchell claimed that he was reckless, a charge Mr. Offit disputed.

It was the first hiccup in the Trump relationship. It would not be the last.

Over the next few years, the commercial real estate group, with Mr. Kennedy now in a senior role, kept lending to Mr. Trump, including to buy the General Motors building in Manhattan. Occasionally, Justice Kennedy stopped by Deutsche Bank’s offices to say hello to the team, executives recalled.

At an annual pro-am golf tournament the bank hosted outside Boston in the early 2000s, Mr. Trump sat down for a recorded interview with the bank’s public relations staff, who asked about his experience with Deutsche Bank.

“It’s great,” Mr. Trump exclaimed, according to a person who witnessed the interview. “They’re really fast!”

In 2003, a Deutsche Bank team led by Richard Byrne — a former casino-industry analyst who had known Mr. Trump since the 1980s — was hired to sell bonds on behalf of Trump Hotels & Casino Resorts. Bank officials escorted Mr. Trump to meet institutional investors in New York and Boston, according to an executive who attended.

The so-called roadshow seemed to go well. At every stop, Mr. Trump was greeted by large audiences of fund managers, executives and lower-level employees eager to see the famous mogul. The problem, as a Deutsche Bank executive would explain to Mr. Trump, was that few of them were willing to entrust money to him.

Mr. Trump requested an audience with the bank’s bond salesmen.

According to a Deutsche Bank executive who heard the remarks, Mr. Trump gave a pep talk. “Fellas, I know this isn’t the easiest thing you’ve had to sell,” the executive recalled Mr. Trump saying. “But if you get this done, you’ll all be my guests at Mar-a-Lago,” his private club in Palm Beach, Fla.

The sales team managed to sell hundreds of millions of dollars worth of bonds. Mr. Trump was pleased with the results when a Deutsche Bank executive called, according to a person who heard the conversation.

“Don’t forget what you promised our guys,” the executive reminded him.

Mr. Trump said he did not remember and that he doubted the salesmen actually expected to be taken to Mar-a-Lago.

“That’s all they’ve talked about the past week,” the executive replied.

Mr. Trump ultimately flew about 15 salesmen to Florida on his Boeing 727. They spent a weekend golfing with Mr. Trump, two participants said.

A year later, in 2004, Trump Hotels & Casino Resorts defaulted on the bonds. Deutsche Bank’s clients suffered steep losses. This arm of the investment-banking division stopped doing business with Mr. Trump.

.. Mr. Trump told Deutsche Bank his net worth was about $3 billion, but when bank employees reviewed his finances, they concluded he was worth about $788 million, according to documents produced during a lawsuit Mr. Trump brought against the former New York Times journalist Timothy O’Brien. And a senior investment-banking executive said in an interview that he and others cautioned that Mr. Trump should be avoided because he had worked with people in the construction industry connected to organized crime.

Nonetheless, Deutsche Bank agreed in 2005 to lend Mr. Trump more than $500 million for the project. He personally guaranteed $40 million of it, meaning the bank could come after his personal assets if he defaulted.

By 2008, the riverside skyscraper, one of the tallest in America, was mostly built. But with the economy sagging, Mr. Trump struggled to sell hundreds of condominium units. The bulk of the loan was due that November.

Then the financial crisis hit, and Mr. Trump’s lawyers sensed an opportunity.

A provision in the loan let Mr. Trump partially off the hook in the event of a “force majeure,” essentially an act of God, like a natural disaster. The former Federal Reserve chairman Alan Greenspan had called the financial crisis a tsunami. And what was a tsunami if not a natural disaster?

.. One of Mr. Trump’s lawyers, Steven Schlesinger, told him the provision could be used against Deutsche Bank.

“It’s brilliant!” Mr. Schlesinger recalled Mr. Trump responding.

Days before the loan was due, Mr. Trump sued Deutsche Bank, citing the force majeure language and seeking $3 billion in damages. Deutsche Bank countersued and demanded payment of the $40 million that Mr. Trump had personally guaranteed.

With the suits in court, senior investment-banking executives severed ties with Mr. Trump.

.. Ms. Vrablic’s superiors encouraged her to make loans that rival banks dismissed as too large or complex. They saw it as a way to elbow into the hypercompetitive New York market.

.. One of Ms. Vrablic’s clients was Jared Kushner, who married Ivanka Trump in 2009. Mr. Kushner regarded Ms. Vrablic as the best banker he had ever worked with, according to a person familiar with his thinking.

Shortly after the Chicago lawsuit was settled, Mr. Kushner was told that Mr. Trump was looking for a loan and introduced him to Ms. Vrablic, according to people familiar with the relationship.

.. Mr. Trump flew Ms. Vrablic to Miami to show her a property he wanted to buy: the Doral Golf Resort and Spa. He needed more than $100 million for the 72-hole property.

Deutsche Bank dispatched a team to Trump Tower to inspect Mr. Trump’s personal and corporate financial records. The bankers determined he was overvaluing some of his real estate assets by as much as 70 percent, according to two former executives.

.. By then, though, Mr. Trump had become a reality-TV star, and he was swimming in cash from “The Apprentice.” Deutsche Bank officials also were impressed that Mr. Trump did not have much debt, according to people who reviewed his finances. Aside from his history of defaults, he was an attractive borrower.

Mr. Trump also expressed interest in another loan from the private-banking division: $48 million for the same Chicago property that had provoked the two-year court fight.

Mr. Trump told the bank he would use that loan to repay what he still owed the investment-banking division, the two former executives said. Even by Wall Street standards, borrowing money from one part of a bank to pay off a loan from another was an extraordinary act of financial chutzpah.

.. Investment-banking executives, including Anshu Jain, who would soon become Deutsche Bank’s co-chief executive, pushed back. Lending to Mr. Trump again would be foolish, they argued, and signal to clients that they could default and even sue the bank.

Executives in the private bank countered that the proposed loans had Mr. Trump’s personal guarantee and therefore were low risk. And the Chicago loan, they noted, would lead to the repayment of tens of millions of dollars that Mr. Trump still owed the investment-banking division.

A top executive with responsibility for the private bank discussed the loans with Mr. Ackermann, the chief executive, who supported them, according to two officials. A powerful committee in Frankfurt, which evaluated loans based on risks to the bank’s reputation, signed off.

“There is no objection from the bank to proceed with this client,” wrote Stuart Clarke, the chief operating officer for the Americas, in a Dec. 5, 2011, email, according to a recipient.

Deutsche Bank wired the money to Mr. Trump. The loans carried relatively low interest rates, executives said, but the business promised to be profitable: As part of the deal, Mr. Trump would hold millions of dollars in a personal account, generating fees for the bank.

“I have no recollection of having been asked to approve that private-banking loan,” Mr. Ackermann said in an interview. He added: “I would have approved it, if it came to me, if it was commercially sound.”

Ms. Vrablic’s relationship with the Trumps deepened.

Deutsche Bank lent money to Donald Trump Jr. for a South Carolina manufacturing venture that would soon go bankrupt. It provided a $15 million credit line to Mr. Kushner and his mother, according to financial documents reviewed by The Times. The bank previously had an informal ban on business with the Kushners because Jared’s father, Charles, was a felon.

In 2012, Jared Kushner recommended that the editor of The Mortgage Observer, one of the publications he owned, write a profile of Ms. Vrablic. The editor, Carl Gaines, knew Mr. Kushner was her client and objected, according to a person familiar with the exchange.

“Just go meet with her,” Mr. Kushner said. “You’ll figure something out.”

gauzy profile of Ms. Vrablic was published in February 2013.

Shortly afterward, the private bank produced a promotional video featuring some of its marquee clients. The video was played at a retreat for Deutsche Bank’s senior leadership in Barcelona. In it, Ivanka Trump extolled the private bank’s work with her family and thanked their relationship manager, according to two people who saw the video.

.. In early 2014, Mr. Trump and his personal lawyer, Michael Cohen, approached Ms. Vrablic about more potential loans.

The owner of the Buffalo Bills had died, and the N.F.L. franchise was up for sale. Mr. Trump was interested, and he needed to show the league he had the financial wherewithal to pull off a transaction that could top $1 billion.

Mr. Trump asked Ms. Vrablic if the bank would be willing to make a loan and handed over bare-bones financial statements that estimated his net worth at $8.7 billion.

.. Mr. Cohen testified to Congress last month that the documents exaggerated Mr. Trump’s wealth. Deutsche Bank executives had reached a similar conclusion. They nonetheless agreed to vouch for Mr. Trump’s bid, according to an executive involved.

Mr. Trump’s bid did not win, but another lending opportunity soon arose.

A federal agency had selected Mr. Trump to transform the Old Post Office Building in Washington into a luxury hotel. But his financial partner — the private equity firm Colony Capital, run by Thomas J. Barrack Jr. — pulled out. Mr. Trump needed nearly $200 million.

.. Because of his decades-long pattern of defaults and his increasingly polarizing political rhetoric — among other things, he had been spreading a lie about President Barack Obama being born overseas — Mr. Trump remained untouchable for most banks.

Ms. Vrablic was willing to help.

In a memo outlining the rationale for the Old Post Office loan, Ms. Vrablic said Mr. Trump was expected to add large sums to his brokerage account if he received the loan, according to an executive who read the document.

This time, there was less internal opposition. One reason: Mr. Jain — by then the bank’s co-chief executive — had a solid relationship with Ms. Vrablic. Mr. Jain accompanied her to meetings with high-profile clients, and he praised her work to colleagues, multiple executives said.

..On a foggy Wednesday in February 2013, Ms. Vrablic and Mr. Jain went to Trump Tower to meet with Mr. Trump, according to two executives with knowledge of the meeting. Ms. Vrablic’s rapport with the client was immediately clear: Mr. Trump’s assistant greeted her as an old friend, and she seemed relaxed with Mr. Trump and his daughter, one executive said.

.. They discussed Mr. Trump’s finances over lunch, and Mr. Jain said he was surprised by his low level of debt, the executives said. After lunch, Ms. Vrablic told her colleagues that Mr. Jain had sounded upbeat about Mr. Trump’s finances.

A $170 million loan to pay for the overhaul of the Old Post Office went through in 2015, and Mr. Trump added more money to his brokerage account. (In May 2016, he reported up to $46 million of stocks and bonds in the account.)

.. On Aug. 6, 2015, Mr. Trump participated in the first Republican presidential debate. He clashed with the Fox News moderator, Megyn Kelly. He flew back to New York early the next morning. That evening, he called in to a CNN talk show and said of Ms. Kelly that there was “blood coming out of her wherever.”

In the intervening hours, Mr. Trump had used a black Sharpie to sign documents for another loan from Deutsche Bank: $19 million for the Doral resort. That brought to more than $300 million the total lent under Ms. Vrablic.

.. On the campaign trail, rivals assailed Mr. Trump’s financial history. In response, he pointed to Deutsche Bank-funded successes like the Old Post Office project, now a gleaming hotel a few blocks from the White House.

.. In early 2016, Mr. Trump asked Ms. Vrablic for one final loan, for his golf course in Turnberry, Scotland.

.. Ms. Vrablic said yes, but a fight soon erupted.

Jacques Brand, who was in charge of Deutsche Bank’s American businesses, angrily objected, partly because of Mr. Trump’s divisive rhetoric.

Ms. Vrablic appealed the decision. Senior executives in Frankfurt, including Christian Sewing, who would become chief executive in 2018, were shocked that the private bank would consider lending Mr. Trump money during the campaign, bank officials said.

The bank’s reputational risk committee killed the transaction in March 2016.

.. That same month, as The Times was preparing an article about Mr. Trump’s excommunication from Wall Street, he cited his warm relationship with Deutsche Bank.

.. “They are totally happy with me,” he said to The Times. “Why don’t you call the head of Deutsche Bank? Her name is Rosemary Vrablic. She is the boss.”

.. After Mr. Trump won the election, Deutsche Bank’s board of directors rushed to understand how the bank had become the biggest lender to the president-elect.

A report prepared by the board’s integrity committee concluded that executives in the private-banking division were so determined to win business from big-name clients that they had ignored Mr. Trump’s reputation for demagogy and defaults, according to a person who read the report.

The review also found that Deutsche Bank had produced a number of “exposure reports” that flagged the growing business with Mr. Trump, but that they had not been adequately reviewed by senior executives.

.. On Deutsche Bank’s trading floor, managers began warning employees not to use the word “Trump” in communications with people outside the bank. Salesmen who violated the edict were scolded by compliance officers who said the bank feared stoking public interest in its ties to the new president.

One reason: If Mr. Trump were to default on his loans, Deutsche Bank would have to choose between seizing his assets or cutting him a lucrative breaka situation the bank would rather resolve in private.

.. Two years after Mr. Trump was sworn in, Democrats took control of the House of Representatives. The chamber’s financial services and intelligence committees opened investigations into Deutsche Bank’s relationship with Mr. Trump. Those inquiries, as well as the New York attorney general’s investigation, come at a perilous time for Deutsche Bank, which is negotiating to merge with another large German lender.

Next month, Deutsche Bank is likely to start handing over extensive internal documents and communications about Mr. Trump to the congressional committees, according to people briefed on the process.

Ms. Vrablic, who is intensely private and rarely discusses her personal life with colleagues, declined to comment. People familiar with her thinking said she expected to be called to testify publicly on Capitol Hill.

A New Front in the War Over Reproductive Rights: ‘Abortion-Pill Reversal’

When the abortion pill became available in the United States in 2000, 12 years after it was approved in France, activists on both sides of the debate predicted that what was then called RU-486 would revolutionize the abortion landscape. One Planned Parenthood medical director told a journalist in the late 1990s that he expected medication abortions to make up 30 percent of all abortions within three or four years. Anti-abortion leaders, meanwhile, foresaw the procedure’s becoming effectively invisible, and therefore difficult to confront directly. George W. Bush, then the Republican nominee for president, said he feared the new protocol would ‘‘make abortions more and more common.’’

.. In 2014, the number of abortions in the United States dropped below one million for the first time since 1975.

.. A decade after RU-486’s arrival in the United States, fewer than 18 percent of abortions took place via medication

.. Even among women whose pregnancies were eligible for the abortion pill — at the time, eight weeks’ gestation or less — almost three-quarters underwent surgery instead.

.. As public discussion about abortions has focused on surgical abortions, the anti-abortion movement has notched victory after victory, chipping away at abortion access through a constellation of state laws that heavily regulate clinics, starve providers of funds and require women to undergo ‘‘counseling’’ or waiting periods before procuring the procedure. As a result, at least 162 abortion providers closed or stopped offering the service between 2011 and 2016

.. In the Midwest and the South, more than half of all women live in counties with no abortion provider at all.

.. But today, 17 years after RU-486 was approved, medication abortion is approaching its initial promise — or threat, depending on your point of view. American women now end their pregnancies with medication almost as often as they do with surgery

.. The experience of taking a few pills in private is on the cusp of becoming what we mean when we say ‘‘abortion.’’

.. This steady rise of medication abortion, or what the anti-abortion movement calls chemical abortion, presents the movement with a significant challenge, one that has turned out to be more complicated than the fear that abortion would become more common.

.. Medication abortions take place relatively early in pregnancy, and they are eliminating many of the images and narratives — the abortionist’s instruments, the impersonal clinic — that have historically served as persuasive scare tactics.

  • .. What the anti-abortion movement has thought through carefully is how to tell stories about abortion’s impact. Early activists, who were mostly Catholics, were almost solely concerned with saving the life of the fetus.
  • Feminists arguing for choice, in turn, made a convincing case for their own rights — and accused people opposed to abortion of not caring about women at all.

.. By the 1990s, emphasizing abortion’s supposed harms to women had become a full-fledged strategy, one that changed both the public face of the anti-abortion movement and its self-identity. Today many young anti-abortion activists frame their work as feminist

.. Promoting abortions as murder had always carried the uncomfortable implication that the women who procured them were killers. In the revised narrative, ‘‘the women are viewed as essentially victims,’’ Williams says. ‘‘The argument is always that they didn’t have the knowledge they really needed.’’

.. And ‘‘abortion pill reversal’’ implies exactly that — that a woman made an uninformed decision and has now thought better of it. The brainchild of a San Diego doctor named George Delgado, ‘‘reversal’’ is a medical protocol that floods a woman’s body with progesterone, the so-called pregnancy hormone, within hours after she has taken mifepristone, the drug that begins a medication abortion. ‘‘If you have something that’s poisoned a specific spot in your body and we know what the antidote is, then you just take the antidote,’’

.. For all the challenges that the abortion pill poses to the anti-abortion movement, it turns out to have at least one unexpected benefit: The hours between the two doses of medication represent an extra decision point to interrupt and redeem. ‘‘With a surgical abortion, once the instrument enters the uterus, then it’s over,’’ Delgado says. Medication abortion, by contrast, gives women ‘‘a second chance at choice.’’

.. Natural Procreative Technology, a Catholic-friendly approach to women’s reproductive health. Developed by an anti-abortion OB-GYN named Thomas Hilgers who was also inspired by ‘‘Humanae Vitae,’’ ‘‘NaProTechnology’’ eschews most forms of birth control and fertility treatments and relies instead on tracking widely used ‘‘biomarkers’’ like cervical mucus and body temperature.

..  he knew that mifepristone, the first drug in the abortion-pill protocol, works by blocking progesterone from the uterus. Couldn’t an extra dose of progesterone overcome the mifepristone? Within hours, he sketched out a plan to inject the woman with 200 milligrams of progesterone and to con­tinue giving the progesterone until the end of the first trimester.

.. Delgado later found out that a doctor in North Carolina, Matthew Harrison, had received a similar call from a crisis pregnancy center in 2006 and independently made the same guess about progesterone counteracting the effects of the mifepristone. That fetus, too, survived, after the mother received progesterone injections through her 26th week of pregnancy.

.. They soon published a small case series in the journal Annals of Pharmacotherapy. The article, just four pages long, describes seven pregnancies treated with progesterone after mifepristone. Two of the abortions completed, but four of the fetuses survived.

.. Delgado’s hotline received just 28 calls in all of 2012. But the volume increased over the years: 200 calls in 2013, more than 400 in 2014 and more than 600 for each of the last two years

.. When a call comes into the hotline, the nurse’s job is to connect the caller as quickly as possible with a local doctor willing to administer the reversal protocol. The program has a network of about 350 doctors

.. If the caller doesn’t live within driving range of one of those providers, the hotline nurse immediately starts calling local doctors and hospitals to explain what reversal is, hoping to find a sympathetic provider. Catholic hospitals are usually a good place to start.

.. One fan gave Harrison a T-shirt that read ‘‘Reversed RU-486. Now reverse Roe vs Wade.’’

.. A vanishingly small percentage of women decide they want to reverse a medication abortion halfway through. In fact, regret is quite rare when it comes to abortions in general. A 2013 study found that although women experienced a wide range of often conflicting responses to the procedure, relief was the most common emotion one week after. A later study found that women who had abortions were also confident in their decisions beforehand — more confident than people who decide to get reconstructive knee surgery, for example.

.. ‘Most women are certain of their decision when they present for care,’’ says the study’s lead author, Lauren Ralph, an epidemiologist at the Univer­sity of California, San Francisco. Their certainty is largely unchanged by waiting periods and mandated counseling, which suggests ‘‘women do not change their minds.’’

.. Ralph also found that women who do experience uncer­tainty are more likely to already believe a myth about abortion, such as that it causes breast cancer.

.. In Cynthia’s memory, it wasn’t the pressure from a priest, a doctor, her mother and her boyfriend that changed her mind. It was the ultrasound. ‘‘When I saw the heartbeat, I mean, truly everything changed,

.. Women who regret their abortions, and are willing to speak publicly about it, have long been valued spokeswomen for the anti-abortion message. But reversal offers a twist to those stories: a happy ending.

It also represents a concrete action that women can take to atone for their initial mistake.

.. While Delgado claims that flooding a woman’s body with progesterone saves the fetus, other doctors say that in many cases the fetus would have survived if the woman simply declined to take the second pill, misoprostol, after the initial dose of mifepristone.

.. The American Congress of Obstetricians and Gynecologists issued a strongly worded statement against reversal in 2015 that said the fetus would survive 30 to 50 percent of the time.

.. The question, in other words, is whether the progesterone protocol is effectively just a placebo. ‘‘There’s no evidence that any kind of treatment is better than doing nothing,’’

.. Delgado and Davenport are also preparing a larger case series for publication later this year, which they say will include about 350 women. Delgado says it shows that the most effective progesterone protocol results in an embryo survival rate between 60 and 70 percent.

.. Critics say that even if those numbers are valid, they aren’t what they seem. Many women who decide to take progesterone undergo an ultrasound first, to see if the pregnancy remains viable; those whose fetuses have died do not go forward with reversal, which means the initial pool of subjects is skewed toward women whose pregnancies had a good chance of continuing even without progesterone.

.. The protocol, however, has attracted almost no interest from the mainstream medical community, in part because the presumed audience is so small.

.. Since 2015, legislators in 10 states have introduced bills requiring doctors to inform women procuring the abortion pill that they can change their minds after taking the first dose. ‘‘These laws are essentially forcing physicians to tell their patients about a treatment that is unproven and essentially kind of encouraging them to participate in an unmonitored research experiment,’’

.. The anti-abortion movement has effectively promoted the idea that many women regret their abortions. Supreme Court Justice Anthony M. Kennedy, considered a wild card on abortion questions, waxed eloquent on the topic in his ruling in Gonzales v. Carhart, a 2007 case that upheld the ban on ‘‘partial-birth’’ abortion. ‘‘It seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained,’’ he wrote in the majority opinion. ‘‘The state has an interest in ensuring so grave a choice is well informed.’’ That assumption undergirds huge swaths of contemporary abortion law: waiting periods, mandatory ultrasounds and requirements that doctors give women more (sometimes dubious) information about the procedure and its effects. The idea seems to be that many women understand what an abortion is only after they have one.

.. Stories from individual women who struggle with remorse remain a powerful weapon in the anti-abortion arsenal, and the abortion rights movement has often stumbled in its attempts to respond.

.. Just raising the question of uncertainty and regret affects the abortion pill’s reputation. ‘‘You’re changing cultural norms about what people think about this kind of abortion,’’ she says. ‘‘You can do that regardless of what the research ultimately shows.’’

More Perfect – Justice, Interrupted

The rules of oral argument at the Supreme Court are strict: when a justice speaks, the advocate has to shut up.  But a law student noticed that the rules were getting broken again and again —by men.  He and his professor set out to chart an epidemic of interruptions.  If women can’t catch a break in the boardroom or the legislature (or at the MTV VMA’s), what’s it going to take to let them speak from the bench of the highest court in the land?

 

Justice Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments

The Daily 202: Kavanaugh hearing offers an ‘unprecedented’ display of the Senate’s institutional decline

— Judiciary Committee Chairman Chuck Grassley said what was truly “unprecedented” was when Democrats blocked Robert Bork’s confirmation back in 1987. “This is my 15th Supreme Court confirmation hearing since I joined the committee in 1981,” said the Iowa Republican. “Thirty-one-years ago, during my fourth Supreme Court confirmation hearing, liberal outside groups and their Senate allies engaged in an unprecedented smear campaign against Judge Robert Bork.”

Bork, as the solicitor general, conspired with Richard Nixon in 1973 to carry out the “Saturday Night Massacre” and fire Archibald Cox in a scheme to obstruct the special prosecutor’s investigation into the Watergate affair. He did so after then-attorney general Elliot Richardson and deputy attorney general William Ruckelshaus had resigned rather than do so. Bork’s nomination to the high court went down 42 to 58 on the Senate floor, with six Republicans joining every Democrat in opposition. Ronald Reagan subsequently nominated Anthony Kennedy as a more moderate replacement.

.. — Judiciary Committee Chairman Chuck Grassley said what was truly “unprecedented” was when Democrats blocked Robert Bork’s confirmation back in 1987. “This is my 15th Supreme Court confirmation hearing since I joined the committee in 1981,” said the Iowa Republican. “Thirty-one-years ago, during my fourth Supreme Court confirmation hearing, liberal outside groups and their Senate allies engaged in an unprecedented smear campaign against Judge Robert Bork.”

Bork, as the solicitor general, conspired with Richard Nixon in 1973 to carry out the “Saturday Night Massacre” and fire Archibald Cox in a scheme to obstruct the special prosecutor’s investigation into the Watergate affair. He did so after then-attorney general Elliot Richardson and deputy attorney general William Ruckelshaus had resigned rather than do so. Bork’s nomination to the high court went down 42 to 58 on the Senate floor, with six Republicans joining every Democrat in opposition. Ronald Reagan subsequently nominated Anthony Kennedy as a more moderate replacement.

.. Kavanaugh is now up for this seat, which Grassley still resents did not go to Bork. The chairman read at length from an op-ed that ran over the weekend in the Wall Street Journal by conservative legal blogger Mark Pulliam. “By confirming Judge Kavanaugh,” Pulliam wrote, “the Senate can go some way toward atoning for its shameful treatment of Justice Robert Bork 31 years ago.”

.. Sen. Mike Lee (R-Utah), whose father was Reagan’s solicitor general, also complained about Bork being blocked during his opening statement. “It remains something of a rock-bottom moment for the Senate and for the Senate Judiciary Committee,” he said.

.. The chorus of reverent Republican paeans to Bork, whose legacy will always be tainted by his role as the hatchet man in the “Saturday Night Massacre,” were particularly striking against the backdrop of Democratic charges that Kavanaugh would give legal air cover to Trump in the plausible scenario that he moves against Bob Mueller, as well as the continuing unwillingness of congressional Republicans to pass legislation that would safeguard the special counsel.

.. In this vein, Sen. Richard Blumenthal (D-Conn.) argued that holding the hearing is “unprecedented … because [Trump] is an unindicted co-conspirator who has nominated a potential justice who will cast the swing vote on issues relating to his possible criminal culpability, including whether he is required to obey a subpoena or to appear before a grand jury, whether he is required to testify in a prosecution of his friends or associates or other officials in his administration and whether in fact he is required to stand trial if he is indicted while he is president.”

.. — Introducing himself to the committee as reasonable and collegial, Kavanaugh described Merrick Garland as a personal “friend” and a “superb” chief judge on the U.S. Court of Appeals for the D.C. Circuit, where they have served together for more than a decade. “I am proud of that body of work and I stand behind it,” Kavanaugh said.

Perhaps this was meant as an olive branch, but Democrats took it as trolling. Garland, after all, was Barack Obama’s nominee to replace Antonin Scalia in 2016, and Senate Republicans refused to give him a hearing or otherwise consider his nomination. As much as anything else, the GOP’s treatment of Garland two years ago destroyed the last vestiges of comity in the judicial nominations process. Three Democrats cited him during the hearing on Tuesday to call for a postponement.

Kavanaugh’s comment about Garland wasn’t the only thing that rubbed salt in open wounds. Tuesday’s hearing featured sometimes naked displays of brute political force by a party that has just a one-seat majority in the Senate.

.. “You had a chance, and you lost,” Sen. Lindsey Graham (R-S.C.) told the Democrats. “If you want to pick judges from your way of thinking, then you better win an election.”

Sen. Ted Cruz (R-Tex.) claimed that the GOP’s refusal to allow a hearing for Garland actually gives Gorsuch and Kavanaugh “super legitimacy” because voters in 2016 knew that the next president would get to pick at least one justice.By releasing a list of the judges he’d pick from, Cruz said, Trump provided “unprecedented transparency.”

“This is an attempt by the Democrats to relitigate the 2016 presidential election,” Cruz continued.

To be sure, when it looked like Hillary Clinton was probably going to win, Cruz argued that Republicans should consider keeping the seat vacant for her entire term.

.. these same GOP members have also been going to the White House complex for several weeks to participate in mock confirmation hearings with Kavanaugh.

They’ve pretended to be Democratic senators in these moot sessions and coached Kavanaugh on how to deflect expected inquiries from the other side.

.. “It’s mostly a sham,” said Whitehouse. “You know the game,” the senator told Kavanaugh, who looked back at him stone-faced. “In the Bush White House, you coached judicial nominees to just tell senators that they have a commitment to follow Supreme Court precedent, that they will adhere to statutory text and that they have no ideological agenda. Fairy tales!”

.. Last year, McConnell went “nuclear” — in the parlance of the Senate — by changing the rules of the body to allow Supreme Court nominees to be confirmed by a simple majority — instead of 60 votes. Harry Reid shortsightedly changed the rules four years earlier to allow lower-court nominees to be confirmed this way, but he said at the time that the Supreme Court process should stay sacrosanct.

.. Going nuclear means that presidents are more likely to pick ideological nominees when their party controls the Senate, whether from the right or the left, because they no longer need any members of the other party to cross over to secure 60 votes. Kavanaugh can be muscled onto the court with only GOP votes, which makes his confirmation a sort of fait accompli. He does not need to make concessions or agree to recuse himself from certain cases.

.. The result of the rule changes is a Senate that’s become more majoritarian. Members of the minority have fewer prerogatives. This is a recipe for institutional decay. No one who watched yesterday’s circus could credibly call the Senate the world’s greatest deliberative body. It certainly isn’t what James Madison had in mind when he designed the upper chamber as a cooling saucer on the passions of the people’s representatives in the House. Republicans will probably come to regret the rule changes when they again, inevitably, find themselves in the minority and Democrats treat them as they’re now being treated. That probably won’t happen next year, but perhaps in 2021 or 2023.

.. But there’s no going back now. Why would Democrats tie their hands and hold their nominees in the future to a higher standard than Republicans have held theirs? Neither party’s base would tolerate unilateral disarmament.

.. “It was a poisonous session, as acrimonious as I have witnessed since sitting in the committee’s hearing room for the grilling of Anita Hill during the second round of the Clarence Thomas hearings,” writes columnist Ruth Marcus.“And while no dispute over documents, however impassioned, can rival the Hill-Thomas encounter, the Republican majority’s handling of this issue will be even more dangerous for the future of the Senate’s ability to conduct its constitutional duty of advice and consent.
 “Kavanaugh may not become the most conservative member of the court, but his background suggests he would be the most partisan,” Dana Milbank explains in today’s paper. “Democrats say the committee received only 7 percent of Kavanaugh’s White House documents — and some of those have been altered, while half cannot be discussed publicly. Why? They would likely reinforce what is already known about Kavanaugh as a nakedly partisan appointment, solidifying the court’s transition from a deliberative body to what is effectively another political branch. …
..  ‘a cynical view of Kavanaugh’s actions would be that he bases his legal reasoning on his conservative views — that he supports broad powers for a Republican president and circumscribed powers for a Democratic president.’ What has emerged about Kavanaugh — particularly his vulgar plan to humiliate [Bill] Clinton — reinforces that cynical view. This is why Kavanaugh’s defenders don’t want the documents to come out.”

Anthony Kennedy’s Imperial Legacy

In the American republic’s slow transformation into a judicial-executive dyarchy, with a vestigial legislature that lets the major controversies get settled by imperial presidents and jurists, Anthony Kennedy occupied a particularly important role.

He was appointed to the Supreme Court at a time when the Republican Party was officially interested in curbing judicial activism and restoring power to the elected branches of government. As the court’s swing vote, though, he instead consolidated the judiciary’s imperial role — taking the expansive powers claimed by judicial liberals in the Warren era and turning them to his own purposes, his own vision of the common good.

He did this without a particularly coherent constitutional theory

.. showing neither humility nor rigor in his ultimate decisions

.. overruling state and federal law more frequently than any justice to his right or left, pontificating in sweeping and self-righteous and faux-poetic prose

.. seeking to establish the court as the decisive and unifying authority for a sprawling and divided country.

.. Without being a completely consistent libertarian, he was a general champion of freedom

.. Kennedy was the modern court’s most “neoliberal” justice, embracing corporate freedom and sexual freedom as a kind of unity, attacking restraints on campaign spending and mandates to buy health insurance in the same spirit as restrictions on pornography or flag-burning or abortion.

.. I admired Scalia’s originalism precisely because it establishes plausible (if, of course, debatable) limits on judicial activism

.. Even when he was right on the merits of an issue, he was still too aggrandizing, too eager to impose his own judgment, too quick to short-circuit legislative debates.

.. what he delivered was, in some sense, what both the political class and the public increasingly desire from their government: not republican deliberation but quasi-monarchical action.

.. judicial activism increasingly fills the empty space created by legislative sclerosis and political cowardice

.. unwillingness of elected representatives to act on controversial issues.

.. tried to act as the “good emperor” that our decadent system and polarized country may require — by balancing his own liberal rulings on abortion and same-sex marriage, for instance, with subsequent decisions that allowed some space for pro-life activism and protected some religious liberties against the anti-clericalism of the left.

.. even if you accept that our country increasingly craves a kind of stabilizing central power, Kennedy’s freedom-first synthesis did not succeed in supplying it.

.. Instead, our age of opioids and suicide and sterility, and the heartland populists and Bronxian socialists that anomie has conjured up, strongly indicates that his neoliberal model needs correction — that the freedom of capital and genitals is not enough for human flourishing, that community and solidarity need to have their day, even if it comes at the expense of certain liberties and transcendentalist idylls.

.. John Roberts, Kennedy’s likely successor as our First Archon, is better suited than his predecessor to the imperial task. We know that Roberts is more temperamentally cautious than Kennedy

.. he’s both more friendly to religious conservatism (witness his Obergefell vote) and more willing to

let social-democratic policymaking stand (witness his vote to save Obamacare).