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.

The Kavanaugh hustle

While Trump is destroying the honor and reputation of the presidency, Senate Republicans are doing all they can to destroy the legitimacy of the Supreme Court.

.. They want a Supreme Court that will achieve their policy objectives — on regulation, access to the ballot, social issues, the influence of money in politics and the role of corporations in our national life — no matter what citizens might prefer in the future.

.. His confirmation will be the equivalent of handing the court over to the Heritage Foundation and the legal staff of Koch Industries.

.. It is characteristic of hypocrites to be unctuous and judgmental. How else to describe the attitudes of the GOP senators rushing Kavanaugh to the bench, and their defenders in the conservative legal academy who long to undo 75 years of court precedents?

.. when Democrats on the Judiciary Committee howled about rigged hearings and did whatever they could to bring more information to light, Republicans primly accused them of lacking civility.

.. The talk of civility is laughable in light of the Republicans’ refusal to give Garland — a judge whose quality Kavanaugh himself extolled — either a hearing or a vote. That was not just incivility, it was an abuse of power reflecting the political right’s determination to seize control of the court by any means necessary.

.. But by voting to confirm Kavanaugh, they would be ratifying everything in politics they claim to be against. This is not just about their pledges to protect the right to choose on abortion. It’s also a test of whether they mean what they say about wanting politics to be less partisan and more consensual. Caving in to the power brokers and ideologues on this will follow them for the rest of their careers.

.. If the Trump era produces a backlash so strong that a Democratic president and Congress pass breakthrough economic and social policies, conservatives will count on their court majority to block, dismantle or disable progressive initiatives.

.. This is a fight about democracy itself. Right now, democracy is in danger of losing.

Donald Trump talks like a mob boss — and reminds us he has no idea what he’s doing

Beyond flipping, Trump addresses Michael Cohen’s charges by repeatedly emphasizing that the hush money payments at the center of his guilty plea were not made with campaign funds. There’s just one problem: That doesn’t exonerate him.

In context, Trump appears to be trying to say that this proves his innocence, but the opposite is the case — you can’t just evade campaign finance rules by paying for your campaign expenses with non-campaign funds. If you could, the rules would be meaningless.

.. A separate issue, however, is that while a private citizen is free to make a secret hush money payment to his former mistress if he likes, a political campaign is required to disclose what it’s spending money on.

.. If Trump had reported a cash payment to Stormy Daniels to the Federal Election Commission, that naturally would have raised questions about why he was paying her and somewhat defeat the purpose of making hush money payments in the first place. So what Trump and Cohen seem to have decided to do is avoid using campaign money, thus allowing them to avoid disclosure rules.

.. But just like lying on the disclosure form would be illegal and refusing to do the disclosure would be illegal, paying for campaign expenses out of a non-campaign account and then declining to report that as a contribution to the campaign is also illegal. Simply put, there is no legal way to spend money on your election campaign without disclosing that fact.

Trump appears to have a misunderstanding of campaign-finance law, and may have inadvertently admitted to breaking the law as a result

“Later on I knew,” Trump said. “Later on. But you have to understand, Ainsley, what he did — and they weren’t taken out of campaign finance. That’s a big thing. That’s a much bigger thing. Did they come out of the campaign? They came from me. I tweeted about it. I don’t know if you know, but I tweeted about the payments. But they didn’t come out of the campaign. In fact, my first question when I heard about it was, ‘Did they come out of the campaign?’ Because that could be a little dicey. They didn’t come out of the campaign, and that’s big. It’s not even a campaign violation.”

.. Cohen explained that he committed the campaign-finance violations “at the direction of the candidate” and with the “purpose of influencing the election.”

.. Based on Trump’s interview on Fox, he seems to think that a campaign-finance violation would have occurred if campaign funds were used to pay off Daniels and McDougal, rather than his personal cash, which was used to reimburse Cohen for the initial Daniels payment. The reverse of this is true, as The Huffington Post first reported.

.. If Trump had routed money through his campaign to pay off women, it would be legal. Campaigns can spend unlimited amounts of money. The problem would have been that if Trump did use his campaign to pay off any women, it would have defeated the purpose of making the payment, which was to ensure silence. Such an expenditure would have had to be reported to the Federal Election Commission and publicly disclosed.

.. Trump’s best defense is one that Cohen claimed was true earlier this year, and one that Trump’s personal attorney, Rudy Giuliani, has also latched onto: That the arrangement was made not to boost Trump’s candidacy but to shield his family, particularly his wife, Melania Trump, from the embarrassing information. That argument was what helped former Democratic Sen. John Edwards of North Carolina in a similar case.

But Cohen’s testimony, backed up by what the government says is evidence that corroborates it, hurts that narrative.