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.”

Who Is Brett Kavanaugh?

Contrary to what supporters say, he’s no originalist.

But Judge Kavanaugh hasn’t earned his originalist badge. It’s being fixed to him to mask the fact that as an appeals court judge, he relentlessly pressed forward a Republican agenda favoring business and religious interests.

.. Judge Kavanaugh leaned a bit toward an originalist approach in two opinions, one in 2008, the other in 2011. But when he was asked in 2016 whether he considered himself an originalist, he didn’t answer, and in a 2017 lecture, he expressed caution. “History and tradition, liberty, and judicial restraint and deference to the legislature,” he explained, “compete for primacy of place in different areas of the Supreme Court’s jurisprudence.”

To a pure originalist, this is an incoherent mixing of methodologies. Any ruling that departs from the original meaning should be thrown out. Judge Kavanaugh has called for no such thing.

.. Instead, he has proudly said that he’s a textualist, which means that he gives primacy to the ordinary meanings of the words of a statute, or the Constitution itself. Textualists steer away from other sources of meaning, like legislative history. Conservatives have often touted textualism for its neutral deference to the legislature. Three of the court’s conservative members — Chief Justice John Roberts and Justices Samuel Alito and Neal Gorsuch — lay claim to textualism as a guiding principle.

But textualism doesn’t serve as an overarching theory for conservative jurisprudence. Textualist interpretation can produce liberal as well as conservative interpretations of statutes. And because ambiguous phrasing in laws leaves judges with choices to make, it doesn’t put much of a restraint on judges. As Judge Kavanaugh has said, quoting the liberal-moderate Justice Elena Kagan, “We are all textualists now.” This means that textualism offers neither a clear dividing line from liberals nor the historical gravitas of originalism.

.. This is clear from the conservatives’ expansive interpretation of the First Amendment’s guarantee of free speech, an approach that has no historical support from the time the First Amendment was written. Despite this, in a series of decisions, from Citizens United in 2010, which opened a faucet of campaign donations and spending, to Janus v. AFSCME in June, which diminished the clout of unions by stopping them from collecting dues from all the workers they represent, conservatives have used the First Amendment to strike down laws that regulate corporations, help unions and limit the influence of money on politics.

.. Tellingly, the court has accepted far more cases involving challenges to regulations of conservative speech than previous courts, with a win rate of 69 percent, compared with 21 percent for cases involving liberal speech. Judge Kavanaugh, too, has embraced this business-friendly interpretation of the First Amendment.

.. With five reliable members, the court’s conservative wing will be in a position to accomplish much, and for the most part it will be easier to achieve its goals without originalism.

.. Expect a reappearance, however, when it comes time to reconsider the constitutional right to abortion access established in Roe v. Wade. With that important exception, originalism has largely served its purpose and can be cast away

.. Judge Kavanaugh’s supporters call him an originalist rather than the pro-business Republican he is because of the theory’s claim that it separates law from politics. As the gap between originalism and the greater goals of conservative jurisprudence widens, however, the claim that the Supreme Court stands above the political fray, already damaged, will become harder to sustain.

 

 

Is Clarence Thomas the Supreme Court’s Future?

The conservative justice’s obsession with the past was on full display during the recent term.

.. It’s going on 50 years since Warren E. Burger, President Richard Nixon’s chosen chief justice and the first of his four Supreme Court appointees, took his seat in June 1969, initiating the turn to the right that continues to this day.

.. He has long insisted that the only legitimate way to interpret a constitutional provision is to give it the “public meaning” it supposedly had at the time it was written. So in 2011, for example, he dissented from a majority opinion written by Justice Antonin Scalia that struck down, on First Amendment grounds, a California law that made it a crime to sell a “violent” video game to a minor without parental permission. “The founding generation,” Justice Thomas wrote in dissent, “would not have considered it an abridgment of ‘the freedom of speech’ to support parental authority by restricting speech that bypasses minor’s parents.”

.. In another case, Justice Thomas reiterated his vigorous and longstanding objection to the “negative” Commerce Clause. This is a doctrine that dates at least to the mid-19th century, prohibiting states from discriminating against out-of-state enterprises in favor of their own residents. It is based on the court’s “negative” interpretation of the Commerce Clause, which empowers the national government to regulate interstate commerce and so, by extrapolation, deprives the states of that power. The court has applied it dozens of times over many years as a bulwark against a feared “Balkanization” of the country. But it is not, as Justice Thomas has frequently pointed out, actually in the Constitution’s text.

..  Justice Thomas took aim in another solo concurring opinion at the court’s approach to what is known as severability, which dates to the 1850s. Under this doctrine, when the court finds that a portion of a statute is unconstitutional, it goes on to decide whether that portion is severable from the remainder of the law or whether the entire statute has to fall. The question is one of legislative intent: Would Congress have enacted the law without the offending provision? This was an important question in the first Affordable Care Act case and in the past term’s decision that permitted states to authorize sports gambling.
.. In a second Fourth Amendment case, Justice Thomas dissented from a majority opinion by Chief Justice John G. Roberts Jr. that the government needs a warrant in order to search the cellphone location records that wireless carriers automatically collect and store as their phone-carrying customers go about their daily business. In deciding that the government’s acquisition of these records was a search within the meaning of the Fourth Amendment, the majority applied the 50-year-old “reasonable expectation of privacy” test, which does not depend on the government’s physical entry onto a suspect’s property.

.. Taken as a whole, as the work of a single justice during a single Supreme Court term, they paint an extraordinary picture of a judge at war not only with modernity but with the entire project of constitutional law.

.. Young people graduating from law school today have never lived in a world in which Clarence Thomas was not on the Supreme Court. The very fact of his position and his persistence makes opinions that would have been hooted out of the room a few decades ago look respectable in many eyes. In 1997, in Printz v. United States, he was the first modern justice to assert that the Second Amendment guarantees an individual right to own a gun, and to invite anyone interested to bring the right case to a Supreme Court newly open for Second Amendment business. It took a mere 11 years, and we were handed District of Columbia v. Heller.

.. “Clarence Thomas Is the Most Important Legal Thinker in America.” I did a double take. How could the estimable Mr. Millhiser sign his name to such an exaggerated claim? But his argument was not that Justice Thomas, who recently turned 70, is winning victories today, but that he is paving the way for victories down the road — and perhaps not all that far down the road. Observing that 20 percent of Trump-appointed appeals court judges are Justice Thomas’s former law clerks, Mr. Millhiser wrote, “Thomas lost the war for the present, but he is the future of legal conservatism.”

Re-watching Joe Biden’s disastrous Anita Hill hearing: A sexual harassment inquisition

There was, Hill and others said later, some extreme tone deafness.

In asking Hill to describe the sexually charged moments with Thomas, Biden asked, “Can you tell us how you felt at the time? Were you uncomfortable, were you embarrassed, did it not concern you? How did you feel about it?”

The most brutal questioning came from Biden’s Republican colleague on the committee, the late Sen. Arlen Specter of Pennsylvania.

“You testified this morning,” Specter said, “that the most embarrassing question involved — this is not too bad — women’s large breasts. That is a word we use all the time. That was the most embarrassing aspect of what Judge Thomas had said to you.”

Hill quickly chided Specter for not characterizing her remarks correctly. Left uncritiqued: Specter’s suggestion that talk of breasts at work was, you know, no big deal.

Specter could not understand, he said, how a seasoned lawyer like herself had not taken notes on the incidents. That was suspicious to him. He openly wondered about her political motivations and whether the committee should trust her recollections of the incidents between her and Thomas, who adamantly denied every allegation.