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.
Years later, Hill said that testifying during Clarence Thomas’s Supreme Court confirmation hearing was “worse than being put on trial, because in a trial you’ve got legal protections.”
.. But in some ways, a criminal trial might be better than testifying before the Senate Judiciary Committee — at least for Ford.
.. At Thomas’s confirmation hearing 27 years ago, Republicans knew they were essentially going to turn the hearing into something like a trial, recalled Barbara A. Mikulski, the Maryland Democrat who at the time was in her first term as a U.S. senator. “And Professor Hill would be the one on trial,” she recalled recently.
.. Ford might be better off as a complainant in a criminal case than at the mercy of a Senate committee with a partisan chairman unlikely to rein in its members.
.. At a criminal trial, juries are drawn from the general population and winnowed through in an adversarial process. The prosecutor and defense attorney work to eliminate bias and select a group to take on the role of juror effectively.
It’s not unheard for jurists to come in with preconceived notions, though jurors are not supposed to deliberate until all the evidence has been presented. Publicly voicing a prejudgment, however — as several Republican senators have already done — would constitute grounds to dismiss a prospective juror.
And yet those biased senators, with their preconceived notions, will be free to participate in the hearing should Ford come to Capitol Hill to testify... The rules of evidence aren’t enforced at congressional hearings. But they would apply in a criminal case, benefiting both Kavanaugh and Ford, according to Aidala. Those rules preclude questioning on matters deemed inadmissible and those not relevant to deciding key issues... “For Ford, I don’t know how far afield the senators will go about talking about her sexual exploits in high school and college; but they wouldn’t be able to do that in a court of law,”
.. These protections, crafted for sex crime victims, limit admissible evidence about a victim’s past sexual behavior.
.. More importantly, perhaps, the case would be presided over by a neutral judge, who would control all aspects of the trial and maintain courtroom decorum. A judge would also prevent attorneys from badgering testifying individuals; though trials feature drawn-out cross-examinations, lawyers cannot repeatedly rehash the same topic... For Ford and Kavanaugh both, Aidala said, “the protection they have at a trial is that the lawyers aren’t playing to a constituency, or thinking about what video clip an opponent will replay during a reelection campaign... senators have different motivations and are playing to a different audience.
.. Criminal defense attorney Roy Black told The Post that the problem with the Senate is that lawmakers are prejudiced, one way or the other.
“They all make speeches and then say, ‘What do you think about that?’ ” he said. “They don’t want to ask questions, and their minds are already made up. It’s very ineffectual when you have a real witness.”
.. The Judiciary Committee’s role here is not to determine guilt or innocence but to advise the Senate on whether to confirm Kavanaugh. The committee is not bound by the criminal standard of proving guilt beyond a reasonable doubt, either.
.. If Kavanaugh was charged with attempted rape, there must be proof beyond a reasonable doubt that Kavanaugh tried to rape her, “and that the assault, which happened so many decades ago, went far enough across the line to constitute an attempt,” he said.
.. As a criminal defendant, shielded with the presumption of innocence, Kavanaugh would not be required to testify or put forth any evidence in his defense.
Still, Black said that he would probably call Kavanaugh to the stand.
“He makes a good witness. He’s smart, he’s presentable, he’s articulate, and he’ll categorically deny it, so I don’t see any downside,” Black said.
.. whether Judge wished to testify at a criminal trial would be irrelevant.
.. Ford claimed that Judge was in the room, making him the sole known eyewitness and, therefore, a material witness. The prosecutor bears the burden to prove her case beyond a reasonable doubt, and she would necessarily subpoena Judge, even if it required arresting him and hauling him in. Failing to call Judge to the stand would result in a jury instruction against the prosecution’s case.
.. Judge signed off at Georgetown Prep with a Sir Noel Coward quote in the school’s yearbook: “Certain women should be struck regularly, like gongs.”
.. He has described himself as having had a blackout drinking problem, and his 1997 memoir, “Wasted,” references high school “masturbation class,” “lusted after girls” at other Catholic schools and a “Bart O’Kavanaugh,” who passed out drunk and threw up in a car.
.. “I think Ford may well be telling the truth, but when you’re putting forward a proposition — in a criminal court, the Senate or an administrative hearing — there has to be some way of determining the truth,” he said. “You cannot punish someone on the testimony of one person, saying this happened 30 years ago, with no corroboration.”
Ford attorney Debra Katz repeatedly has stared down Republican Judiciary Committee Chairman Charles E. Grassley (R-Iowa), swatting away one artificial deadline after another. Grassley told her he needed an answer by Friday at 10 a.m. That got pushed to 10 p.m., and then to 2:30 p.m. on Saturday. Katz rightly called these deadlines arbitrary and more importantly knew she had leverage.
.. With Republican Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Jeff Flake of Arizona saying they wanted to hear from Ford before voting, Grassley couldn’t very well cut off discussion. He didn’t have the votes to confirm the nominee.
.. If Republicans were hoping to intimidate Ford it didn’t work. Rather it revealed that there is a slim chance, more than zero, that Republicans might not have the votes after this next week.
.. Republicans have made repeated, stupid mistakes that have not helped their position.
- President Trump attacked Ford, asserting she would have gone to the police as a 15-year-old if the attempted rape was “that bad.” Collins pronounced herself “appalled.”
- Senate Majority Leader Mitch McConnell (R-Ky.) repeatedly vowed he would confirm Kavanaugh. They’d “plow through” he declared, a remarkable confession that they’ll bulldoze Ford and vote to confirm no matter what.
The public can conclude Republicans have no problem sitting Kavanaugh even if Ford’s claim is true.
.. Nevertheless, it appears someone communicated her name to Whelan before it was made public.
.. The question now is whether anyone at the White House, Kavanaugh or at the Senate Judiciary Committee was involved in the harebrained scheme to accuse a classmate of Kavanaugh’s under the bonkers theory Ford got the identity of her attacker “confused.”
.. Well, someone told Whelan what was up, and any coordination with Kavanaugh (for example, via the right-wing PR outfit CRC, who hyped Whelan’s revelation), would be separate grounds for denying him confirmation and would also ensnare the judge in the host of civil and ethical problems Whelan created.
.. As if that weren’t enough, an employee of CRC on loan to the Senate Judiciary Committee, Garrett Ventry, resigned for falsifying his résumé and for alleged sexual harassment.
.. Even if they had tried, Republicans could have not done a better job demonstrating their bias, ineptitude, unseriousness, meanness, unfairness and general lack of empathy.
.. There are now at least two related scandals : 1.) Whether Kavanaugh attacked Ford and now is lying, and 2.) the identities of those involved in a reprehensible scheme to pin a crime on someone for which there is zero evidence of wrongdoing. Between Trump’s ridiculous assertion that a 15-year-old’s failure to report a sex crime (which launched the #WhyIDidntReport social media phenomenon) and the nutty mistaken identity plot (which seems to concede Ford was attacked)
.. Free advice: Cut their losses, get Kavanaugh to withdraw and promise a better nominee with no baggage later this year or next.
“In the very near future, Judge Kavanaugh will be on the United States Supreme Court,” Senate Majority Leader Mitch McConnell (R-Ky.) said Friday. “We’re going to plow right through it,” he said. Though Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) has tried to appear more reasonable, his chief counsel for nominations tweeted on Wednesday: “Unfazed and determined. We will confirm Judge Kavanaugh.”
.. The GOP argument boils down to: We doubt the assault occurred, and it is not serious if it did.
.. Is it any wonder Ms. Ford is hesitant to testify before a committee that Republican senators control? They have rejected the route most likely to get at the truth. Ms. Ford asked for an FBI investigation into her allegations
.. Republicans fought back, despite the fact that the FBI is asked routinely to reopen background-check investigations on matters far less concerning and for nominees far less important.
.. Instead, Republicans proposed that Ms. Ford and Mr. Kavanaugh offer testimony before the Judiciary Committee just a week after senators learned about the details of the alleged assault, and without the due diligence any self-respecting investigator would have conducted.
Mark Judge, the man Ms. Ford claims was in the room when the assault occurred, has not been subpoenaed. The same is true of other potential witnesses, all of whom the FBI could have identified and interviewed, subjecting them to criminal liability if they lied.
.. Whatever the underlying truth, Republicans have endeavored to make it a “he said, she said” matter they could quickly bury.
.. If Ms. Ford is telling the truth, she cannot allow Mr. Kavanaugh to repeat his ringing denials unanswered, which would only play into Republican attempts to sweep her accusation under the rug.