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.
— “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).
Kennedy Retires — It’s On!
Whoever accepts President Trump’s call for the nomination will be one of the bravest men or women in public life, because he or she is going to be attacked with unrelenting fury from the Left.
.. For a lot of white evangelicals, this moment was worth every migrant child forever traumatized, every refugee family denied safety, every sexual assault victim betrayed, every white nationalist emboldened, every lie told. These are the ends that justified the means.
.. Bears repeating: Had Clinton won, she’d likely have replaced Scalia, Kennedy, and eventually Ginsburg (85) and Breyer (79). -That’d make six relatively young liberal justices and a lasting majority. -Now, it’ll be five conservatives, all 70 and under.
.. (Chuck Schumer quite understandably called on McConnell to follow the same policy he did to deny Merrick Garland a hearing in an election year. McConnell, a hardballer if ever there was one, quite understandably didn’t take this seriously.)
.. If Trump is re-elected in 2020, and he still has a Republican Senate, there is a decent chance that he could leave office with a 7-2 conservative majority.
.. First, the hearings could well be a catalyst for real violence
.. Let’s revisit this January piece from National Review’s Michael Brendan Dougherty:
I’ve started to think that Supreme Court Justice Anthony Kennedy may be the one man preventing the United States from political breakdown.
.. both sides have reason to pity themselves as the losers of the [political] system. Partisan Democrats, with some justification, feel that the constitutional system favors dirt (geography), so it rewards Republicans with too many senators and even electoral votes than they would otherwise win. Many partisan Republicans also feel that their votes go for naught, and that elites in the media, donor class, and social scene of Washington, D.C., constantly make Republicans under-deliver on their promises.
.. Kennedy deals out victories and defeats to each side — giving slightly more defeats to social conservatives. In effect, he constrains what each side can do to the other. His mercurial jurisprudence replicates and even gives the savor of legitimacy to a closely divided country.
.. So I’ve started to worry that if the Court soon consolidates to the left or the right, partisans on the losing end of that bargain will swiftly lose faith in democracy itself. A non-swinging Supreme Court would give the impression of super-charging the ability of one party to act, and restraining its competitor. A consolidated Supreme Court could open up whole new fields of legislation for one side to act against the other. At that point, what would happen?
.. Overturning Roe would only mean that regulating abortion returns to the states. If you live in a socially liberal state now, you don’t have anything to worry about. That’s not going to make you happy, but it’s not Armageddon. And there is no realistic chance that Obergefell will be overturned. But even if it were, again, that only means that the gay marriage question devolves to the states. Gay marriage is overwhelmingly popular. There might be a handful of Southern states (plus Utah) that might vote against it, in a popular referendum. But even they would fall eventually. Same-sex marriage isn’t an issue for younger voters, who support it by a wide margin.
.. Kennedy retiring is where the Roy Moore own goal really, really hurts. We now only have 51 votes, but two of those are Murkowski and Susan Collins, who will likely be reluctant to support a 5th pro-life justice. Mitch will have to put the screws on to get to 50.
.. However, had Hillary Clinton won, conservatives would be in the same miserable position today as liberals are.
It is not at all healthy for the republic that the Supreme Court matters so much. But we are where we are.