Democrats Abandon the Constitution

The Kavanaugh battle lost, they claim the Electoral College, Senate and judiciary are illegitimate.

And Justice Kavanaugh cannot be impeached for conduct before his promotion to the Supreme Court. Article III provides that judges “hold their Offices during good Behavior,” so that a judge can be removed only for “high Crimes and Misdemeanors” committed during his term in office.

That puts inquiry into allegations about Justice Kavanaugh’s conduct as a teenager and young adult well outside Congress’s investigative authority, along with any claims that he misled the Judiciary Committee. Such claims could be reviewed only as part of a criminal investigation by federal prosecutors based on a referral from the Senate, the only body that may decide whether his testimony contained “material” misrepresentations. For the House to inquire into this matter would impermissibly encroach on the Senate’s advice-and-consent power.

..  And it is the Supreme Court’s countermajoritarian character that made possible the decisions, such as Roe v. Wade and Obergefell v. Hodges, that progressives now fear are at risk of being overturned or pared back

On the Left, Eyeing More Radical Ways to Fight Kavanaugh

And just as in the early decades of the 20th century, when a conservative-dominated Supreme Court repeatedly struck down progressive economic policies like child labor and minimum-wage laws leading up to the New Deal fight, Democrats fear that the new majority will systematically crush their achievements — not just hollowing out past gains like abortion rights, but also striking down programs they hope to enact if they regain power, like expanding Medicare or efforts to curb climate change.

.. Lindsey Graham, Republican of South Carolina, said on “Fox News Sunday” that he intended to help House Republicans in swing districts campaign on the issue over the next month, saying their Democratic opponents should be asked whether they supported impeaching Justice Kavanaugh and “Do you want an outcome so badly that you would basically turn the law upside down?”

.. Still, many liberals are quietly looking forward to reviving the fight if they win a House majority and subpoena power, rather than resigning themselves to waiting for a conservative justice to leave the court. The oldest of the five, Justice Clarence Thomas, is just 70.

Many are vowing, for example, to try to uncover more files from Justice Kavanaugh’s time as an official in George W. Bush’s White House in hopes of finding more evidence to support their accusations that he lied under oath about his actions.

.. As soon as Justice Kennedy announced his retirement in June, some liberals began calling for Democrats to prepare to expand the court by two justices when they regain power, permitting a future Democratic president and Democratic-controlled Senate to try to transform the court’s controlling faction from its five Republican appointees to six Democratic ones.

..  Carrie Severino, the chief counsel and policy director of the conservative Judicial Crisis Network, deemed it wishful thinking that Democrats would uncover irrefutable evidence of perjury by Justice Kavanaugh. She said it was “inconceivable” that the Senate would convict and remove him, and warned that even such an effort would damage the rule of law by delegitimizing the court as an institution that stands apart from partisan politics.

.. “Although Roosevelt lost that battle, he eventually won the war by serving three full terms as president and appointing eight of the nine members of the court,”

.. Lee Epstein, a professor at Washington University in St. Louis who studies the judiciary, predicted that Chief Justice John G. Roberts Jr., aware of the danger to the court’s legitimacy, will try to guide it into staying quiet for at least several years.

..  if the five conservatives stick together and severely circumscribe a future Democratic majority’s ability to govern, he wrote, “Democrats will face some difficult questions about whether to try court-packing or other forms of exotic procedural extremism in order to secure the authority to govern.”

In that case, he said, the silver lining for liberals is that Justice Kavanaugh was confirmed, as opposed to being withdrawn and replaced by an untarnished but ideologically similar nominee. The cloud over his presence, Mr. Yglesias predicted, will help the left’s “necessary delegitimization” of the court.

House Democrat Promises Kavanaugh Investigation if Party Wins Control

He said that if Democrats took power, he would expect the committee to immediately subpoena records from the White House and the F.B.I., which conducted an abbreviated supplemental background investigation into two of the misconduct claims. That document request would include communications between officials at both entities.

The committee would also seek to interview Judge Kavanaugh’s accusers and the dozens of potential witnesses they identified in recent days, most of whom were not contacted by the F.B.I. He said he would also call the F.B.I. director, Christopher A. Wray, to testify.

One of Dr. Blasey’s lawyers said that her client only wanted to tell her story and did not support impeachment.

Mr. Nadler’s comments are likely to be seized on by Republicans, who have accused Democrats of waging a campaign to discredit Judge Kavanaugh at all costs. They argued on Friday that Democrats would never be satisfied with any investigation, and they say that it is the Democrats who are trying to undercut the legitimacy of the Supreme Court.

How the US Supreme Court Lost Its Legitimacy

Though Democratic presidential candidates have won the popular vote in every single election since 1992, except one, Republicans have managed to secure a far-right majority on the US Supreme Court. As a result, the Court’s claim to be a neutral, non-partisan arbiter for pressing constitutional questions is quickly losing credibility.

.. the nomination of Brett Kavanaugh to a seat on the Supreme Court marks the culmination of a decades-long campaign by the right-wing Federalist Society to reshape the judiciary. For those devout conservatives and their monied backers, faced with the prospect of massive demographic and generational shifts in the country’s body politic, the strategy has long been to find a way to limit severely access to authentic democratic governance in the United States for generations to come. They now seem on the verge of achieving their goal.

.. since 1988, Republican presidential candidates have won the popular vote in presidential elections – the only consistent measure of national voter intent – just once, when George W. Bush was reelected in 2004 after a period of national unification following the September 11, 2001, terrorist attacks. In every other presidential election (1992, 1996, 2000, 2008, 2012, and 2016), the Democratic candidate won more votes than the Republican candidate.

.. considerable evidence has accumulated that Thomas acceded to that seat by committing perjury during his Senate confirmation hearings.

.. Nine years later, Thomas would go on to join the 5-4 majority in Bush v. Gore, in which the Court ruled that Florida’s 2000 election recount must stop. In doing so, he helped hand the presidency to the son of the man who had appointed him, and denied it to Al Gore, who had won the national popular ballot by more than 500,000 votes.

.. So obtuse was the majority’s written opinion in that case that the ruling actually came with a remarkable disclaimer that it should never be cited as precedent in the future.

.. In 2005, he appointed the current chief justice, John Roberts, to replace William Rehnquist; and in 2006 he appointed Samuel Alito to replace Sandra Day O’Connor.

.. Obama bent over backwards to assuage them, nominating Merrick Garland, the moderate Chief Judge of the US Court of Appeals for the District of Columbia Circuit.

.. Mitch McConnell, succeeded in stymieing the president’s constitutional authority to appoint Supreme Court justices with the “advice and consent” of the Senate.

It bears mentioning that, at this time, the 54 Republicans in the Senate had collectively received 20 million fewer votes than their 46 Democratic colleagues. The Republicans owed their majority strictly to the Senate’s anti-democratic composition, whereby each state is represented by two senators

.. This scheme was one of many concessions made to slave states during the drafting of the Constitution, and with the rise of urbanization, it has come to have an increasingly distortionary effect on American politics. For example, Wyoming’s two senators represent 563,767 people (according to the 2010 census), whereas California’s senators represent 37,254,518.

.. Moreover, Clinton achieved her high popular-vote margin despite widespread voter-disenfranchisement campaigns aimed at Democratic-leaning voters in states controlled by Republicans.

.. In Florida, where elections are regularly notoriously close, more than 1.5 million citizens (over 10% of the state’s total number of adults, and one in five African-Americans) are denied the vote owing to nonviolent criminal convictions, even after they have served their time in prison.

.. Despite having no democratic mandate to speak of, Trump and the Senate Republicans wasted no time in confirming Neil Gorsuch to Garland’s rightful seat on theCourt.

.. Kavanaugh was selected by a president who has been implicated in a felony allegedly committed in pursuit of the office he now holds. That alone calls into question Trump’s legitimacy. But he is also the subject of an unprecedented investigation into his campaign’s possible collusion with a hostile foreign power – an investigation that has already resulted in more than 20 guilty pleas or felony convictions.

.. Kavanaugh, a member of the legal team that persuaded the Supreme Court to hand Bush the presidency in 2000 (thereby hastening the whole grim cavalcade of misbegotten) was most likely selected for his conspicuous support of executive authority in the past. His interpretation of the president’s powers seems to brook no limits, and would likely open the door for Trump to ignore a grand-jury subpoena and even shut down the investigation of his campaign.

.. With his party still enjoying a two-vote (minority-elected) majority in the Senate, McConnell has shown no compunction about ramming Kavanaugh’s dubious nomination through that body. That leaves no alternative but to consider the dire implications of a Supreme Court dominated by the Misbegotten Majority: Thomas, Roberts, Alito, Gorsuch, Kavanaugh. What will this judicial coup mean for reproductive, criminal, labor, and civil rights?

.. More to the point, one of the main threats posed by the new Court is what it will do to voting rights and the laws governing elections – that is, the democratic process itself. Decisions that bear on the outcomes of elections could very well upend the functioning of the other two branches of government, thereby blocking all other possible avenues of redress available within theConstitution’s wider system of checks and balances.

.. Of course, this has been the Republicans’ idea all along. For decades, the Federalist Society, which has overseen all of Trump’s judicial nominations, has understood that cultural and demographic trends are poised to strip the power of its wealthy, predominantly white male sponsors. That cohort is in the process of dying out, and the majority of future voters – and, indeed, current voters, judging by recent popular-vote counts – will be younger, more diverse, more tolerant, and considerably further to the left on economic matters.

To forestall this outcome of democracy, conservatives’ first instinct was to limit the franchise itself. The broad demographic and generational changes underway could be nullified by denying key constituencies the right to vote. And when that wasn’t possible, the next best option was to tamper with electoral outcomes by means of untraceable “dark money” and gerrymandering. The result is that Austin, Texas, one of the most liberal cities in America, is represented in the House of Representatives by four Republicans and just one Democrat; and North Carolina, a state that is evenly divided between Republican and Democratic voters, is represented by ten Republicans and just three Democrats.

.. He was also on board for the decimation of the 1965 Voting Rights Act, which for a half-century had prevented blatant racial discrimination in districts with documented histories of disenfranchising African-Americans and members of other minority groups. And he routinely passed the buck on gerrymandering cases.

.. Citing so-called states’ rights, the Court might start by overturning a recent 3-0 federal circuit court decision ordering North Carolina to redraw its egregiously gerrymandered congressional districts. With that precedent in place, other states will be able to step up their own voter-suppression efforts across the board.

.. For example, some states might decide to deny college students the right to cast absentee ballots, or to vote in jurisdictions where they have not established a permanent residency (or both). Others may think to impose property requirements for voter eligibility, or to “save costs” by shutting down polling stations in, say, Latino neighborhoods.

Still others might require non-drivers to show another form of state-issued identification, which can be acquired only at some remotely located administrative office.

.. retaking the House in 2018 won’t do the Democrats much good as far as the Court is concerned.  All of the constitutional checks on the judiciary rest with the Senate.

..  when it comes to voting rights, gerrymandering, and other election-related cases, he has been one of the justices leading the charge from the right.

.. Whereas Democratic presidents have based their appointments to the Court on merit, Republicans have made a point of selecting younger jurists who will remain on the bench for decades.

.. All of this will be justified on the grounds of “originalism” – the FederalistSociety/Scalia doctrine of sticking to the strict letter of the Constitution as intended (according to them) by its authors at the time of its promulgation. Never mind that in 1787, only propertied men took part in the Constitutional Convention, and that a sizeable plurality were slaveholders zealously guarding their right to treat people like chattel.

..  if individual states try to enact progressive policies on their own, they should be prepared for the Misbegotten Majority suddenly to suspend its much-vaunted devotion to “states’ rights” and strike those down, too. After all, that is the job their sponsors put them there todo. They will not soon forget that they are part of a decades-long project of minority rule.

.. After 2020, more avenues for the proper functioning of checks and balances could open up, especially if the Democrats win the White House and the Senate. Frustrated by their democratically legitimate legislation being scuttled by a misbegotten Court, they could see fit to draft articles of impeachment against Thomas.

.. The journalists Jane Mayer and Jill Abramson have marshaled clear evidence that Thomas lied under oath throughout his confirmation hearing on matters pertaining to his past behavior toward female co-workers and subordinates. And Kavanaugh himself may be facing similar jeopardy with regard to possible perjury in his own confirmation processes.

.. Alternatively, Democrats could pick up where former President Franklin D. Roosevelt left off, by trying to expand the size of the Court, which can be achieved through legislation. But, given the squishiness of swing-state Democrats, a court-packing gambit could fail, as it did with Roosevelt; or, even worse, it could backfire by setting a dangerous precedent for Republicans to follow when they return to power.

..  America would hardly be the first democracy in history to succumb to plutocratic autocracy verging on fascism.