President Trump is operating from an ancient political playbook.
Gail: Perhaps my single favorite revelation was that our self-made billionaire was earning $200,000 a year from the family empire when he was a 3-year-old. Do you think all the nation’s toddlers are now eyeing their parents and wondering, “O.K., where’s my income stream?”
.. The idea that the president is self-made is almost as laughable as the notion that he writes (or, for that matter, reads) his own books.
.. The Democrats need to come up with a compelling, forward-looking agenda for the 2020 elections. Demanding an end to tax loopholes would allow them to talk about real change for the future while eviscerating Donald Trump at the same time.
.. Do Trump fans care about this stuff? Thanks to our colleagues, we know he’s a phony billionaire who represents all the things they in theory hate about the New York economy. But he’s already run a populist anti-immigration campaign that managed to jump right over the undocumented workers he’s hired.
.. Mainly, though, they don’t care because it’s an investigation that dwells on the past, while the presidency is about the present and the future. And while the rest of us were busy tearing our hair out over Brett Kavanaugh and Christine Blasey Ford, the unemployment rate dipped to its lowest level since Neil Armstrong walked on the moon, the Dow hit another record and trade disaster was averted when a new Nafta agreement was reached by Mexico, Canada and the U.S.
All of which is to say that you’re right. Democrats really do need to come up with a forward-looking agenda for 2020, because if all they have to talk about are the Trump family’s tax dodges from 30 years ago, or if they try to relitigate the 2016 election, they will lose again.
.. Back in days of yore the media was mainly TV networks and big newspapers that wanted to communicate with a large audience. Now the stars are — people who yell. Blogs, Twitter — we’ve been painfully aware since 2016 that power belongs to whoever can get their followers really, really worked up... There’s a lot of talk about divisions between left and center among the Democrats, but it doesn’t compare to what’s happened to the Republicans. It’s really two parties, with the establishment so terrified of the Trump train, they’re afraid to peep... I wish the G.O.P. were more divided: One of the most depressing political facts of our day is the extent to which Trump has captured the party, leaving conservatives like me who oppose him feeling politically homeless... But you’re right. It does feel different this time. And I think the difference is that the fights aren’t really about policy. They’re about our personal experiences and deepest fears... By the end a vote for Kavanaugh was a vote for a guy who went out of his way to rally the troops by turning the nomination into a partisan us-against-the-Democrats battle. I realize the Democrats were not exactly working above the fray themselves. But the Supreme Court is about transcending partisanship. That’s supposed to be the whole point. And if the justices don’t always live up to that goal, that doesn’t mean you pick a new guy who’s given up the fight before he starts... something tells me that if the nominee were Amy Coney Barrett, Democrats would look for a reason to postpone the vote, hope to retake the Senate and then … take revenge for Merrick Garland by refusing to hold a vote... Gail: Not necessarily agreeing, but Merrick Garland is an open sore. Particularly since Mitch McConnell keeps gloating about it.
.. One thing we can probably agree on is that the process managed to degrade and demean just about everyone who participated in it. Blasey never intended to go public, but Washington can’t keep a secret so her name got leaked. I doubt Kavanaugh intended to go on the attack quite the way he did, but, yet he was advised by White House counsel Don McGahn to “channel his outrage and indignation.”
.. The news media reported stories that otherwise violated normal journalistic standards. And most senators made fools of themselves one way or another: The low point for me was Connecticut’s Richard Blumenthal, who famously lied about his military service, lecturing Kavanaugh on the legal concept of “false in one thing, false in everything,” as I noted in my column.
.. my constant preoccupations: the way this country is organized to disenfranchise urban voters and empower people from rural areas.
.. The 59 million people in California and New York are going to elect Democratic senators. But they’ll be completely canceled out if the less than two million people in Wyoming and Montana decide to go Republican.
The Supreme Court’s Legitimacy Crisis
the 54 senators who voted to elevate Judge Gorsuch had received around 54 million votes, and the 45 senators who opposed him got more than 73 million. That’s 58 percent to 42 percent.
.. And if the Senate confirms Brett Kavanaugh soon, the vote is likely to fall along similar lines, meaning that we will soon have two Supreme Court justices who deserve to be called “minority-majority”: justices who are part of a five-vote majority on the bench but who were nominated and confirmed by a president and a Senate who represent the will of a minority of the American people.
.. Two more current members of the dominant conservative bloc, while nominated by presidents who did win the popular vote, were confirmed by senators who collectively won fewer popular votes than the senators who voted against them.
.. Clarence Thomas, who was confirmed in 1991 by 52 senators who won just 48 percent of the popular vote, and Samuel Alito, confirmed in 2006 by 58 senators who garnered, again, 48 percent of the vote.
.. If fate were to hand President Trump one more opportunity to put a justice on the court before 2021, it would almost certainly again be a bitterly contested and close vote, and it would probably leave us with a majority of Supreme Court justices, five, who were confirmed by senators who received a minority share of the vote.
.. no Democratic president has ever taken office after losing the popular vote. And second, justices nominated by Democrats have never been confirmed by such narrow margins. Of the four liberals currently on the court, all received 63 votes or more, from senators winning and representing clear majorities of their voters.
.. we’re on the verge of having a five-member majority who figure to radically rewrite our nation’s laws. And four of them will have been narrowly approved by senators representing minority will.
.. Bill Clinton and Barack Obama did not nominate jurists who had left paper trails of judicial extremism or dropped other hints that their jurisprudence would be radical.
.. outsourced the judicial-selection process to right-wing groups like the Federalist Society and the Heritage Foundation and twice nominated judges with an eye cast largely toward how happy they would make conservative evangelicals.
.. Republicans are doing to the Supreme Court what they have already accomplished in Congress. There, through aggressive gerrymandering, they’ve muscled their way to a majority even as their candidates have sometimes received collectively fewer votes than Democrats. And now they’re doing it to the court, by breaking the rules (Merrick Garland) and advancing nominees who are confirmed by legislators representing minority support.
Merrick Garland Supreme Court nomination
Following the February 2016 death of Associate Justice of the Supreme Court Antonin Scalia, President Barack Obama nominated Merrick Garland to fill Scalia’s seat on the Supreme Court on March 16, 2016. At the time of his nomination, Garland was the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit. Scalia’s death led to an unusual situation in which a Democratic president had the opportunity to appoint a Supreme Court nominee while the Republicans controlled the United States Senate; before Scalia’s death, such a situation last occurred when a Senate Republican majority confirmed Grover Cleveland‘s nomination of Rufus Wheeler Peckham in 1895.[1] Conversely, in February 1988, during an election year, the Democratic-controlled Senate confirmed Anthony Kennedy, who was the Republican President Ronald Reagan‘s nominee for the Supreme Court, though Kennedy had been nominated in November 1987 to replace Lewis Powell who was nominated by Richard Nixon, and the vacancy had occurred in June 1987.[2] On October 9, 1990, the Democratic controlled Senate (55–45) confirmed President George H. W. Bush appointee, David Souter, 90–9. On October 15, 1991, that same Senate confirmed Clarence Thomas, 52–48.
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.1
.. 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.