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.

Kavanaugh is lying. His upbringing explains why.Kavanaugh is lying. His upbringing explains why.

The elite learn early that they’re special — and that they won’t face consequences.

Brett Kavanaugh is not telling the whole truth. When President George W. Bush nominated him to the U.S. Court of Appeals for the District of Columbia Circuit in 2006, he told senators that he’d had nothing to do with the war on terror’s detention policies; that was not true.
Kavanaugh also claimed under oath, that year and again this month, that he didn’t know that Democratic Party memos a GOP staffer showed him in 2003 were illegally obtained; his emails from that period reveal that these statements were probably false.

And it cannot be possible that the Supreme Court nominee was both a well-behaved virgin who never lost control as a young man, as he toldFox News and the Senate Judiciary Committee this past week, and an often-drunk member of the “Keg City Club” and a “Renate Alumnius ,” as he seems to have bragged to many people and written into his high school yearbook. Then there are the sexual misconduct allegations against him, which he denies.

.. How could a man who appears to value honor and the integrity of the legal system explain this apparent mendacity? How could a man brought up in some of our nation’s most storied institutions — Georgetown Prep, Yale College, Yale Law School — dissemble with such ease? The answer lies in the privilege such institutions instill in their members, a privilege that suggests the rules that govern American society are for the common man, not the exceptional one.

.. What makes these schools elite is that so few can attend. In the mythologies they construct, only those who are truly exceptional are admitted — precisely because they are not like everyone else. Yale President Peter Salovey, for instance, has welcomed freshmen by telling them that they are “the very best students.” To attend these schools is to be told constantly: You’re special, you’re a member of the elect, you have been chosen because of your outstanding qualities and accomplishments.

.. Schools often quite openly affirm the idea that, because you are better, you are not governed by the same dynamics as everyone else. They celebrate their astonishingly low acceptance rates and broadcast lists of notable alumni who have earned their places within the nation’s highest institutions, such as the Supreme Court. Iheard these messages constantly when I attended St. Paul’s, one of the most exclusive New England boarding schools, where boys and girls broke rules with impunity, knowing that the school would protect them from the police and that their families would help ensure only the most trivial of consequences.

.. children whose parents are in the top 1 percent of earners are 77 times more likely to attend an Ivy League school than are the children of poorer parents — meaning that, in cases like this, admission is less about talent and more about coming from the right family.
.. privilege casts inherited advantages as “exceptional” qualities that justify special treatment.
.. when the poor lie, they’re more likely to do so to help others, according to research by Derek D. Rucker, Adam D. Galinsky and David Dubois, whereas when the rich lie, they’re more likely to do it to help themselves.
.. elites’ sense of their own exceptionalism helps instill within them a tendency to be less compassionate.
.. Take drug use. While the poor are no more likely to use drugs (in fact, among young people, it’s the richer kids who are more likely to drink alcohol or smoke marijuana), they are far more likely to be imprisoned for it
.. Kavanaugh’s privilege runs deep, and it shows. He grew up in a wealthy Washington suburb where his father spent three decades as CEO of a trade association. There has been a sense among his supporters that his place is deserved, which mirrors the climate of aristocratic inheritance he grew up around. His peers from the party of personal responsibility have largely rallied around him, seeking to protect his privilege.
.. Ari Fleischer, put it: “How much in society should any of us be held liable today when we lived a good life, an upstanding life by all accounts, and then something that maybe is an arguable issue took place in high school? Should that deny us chances later in life?”
American Conservative editor Rod Dreher wondered “why the loutish drunken behavior of a 17 year old high school boy has anything to tell us about the character of a 53 year old judge.”
.. This collective agreement that accountability doesn’t apply to Kavanaugh (and, by extension, anybody in a similar position who was a youthful delinquent) may help explain why he seems to believe he can lie with impunity — a trend he continued Thursday, when he informed senators that he hadn’t seen the testimony of his accuser, Christine Blasey Ford, even though a committee aide told the Wall Street Journal he’d been watching.
.. servant leadership and privilege are often bedfellows. Both suggest not a commonality with the ordinary American, but instead a standing above Everyman. Both justify locating power within a small elite because this elite is better equipped to lead.
.. Retired justice Anthony Kennedy, according to some reports, hand-picked Kavanaugh as his successor
.. both allow space for lying in service of the greater good. Privilege means that things like perjury aren’t wrong under one’s own private law.

The Case for Impeaching Kavanaugh

If the Democrats win the House this fall, they can investigate the charges against him, should he be confirmed.

.. Impeachment proceedings in the House are investigative in nature and come with a full panoply of quasi-judicial powers, including aids to investigations, such as the power to subpoena witnesses to compel them to appear and testify (subject, of course, to constitutional privileges, if applicable, such as the Fifth Amendment’s guarantee against self-incrimination).
.. If a simple majority of the House decided to proceed with impeachment, the House Judiciary Committee would be empowered to conduct a thorough and careful investigation of the sexual misconduct allegations that Professor Christine Blasey Ford has made against Mr. Kavanaugh involving a drunken sexual assault when both were high school students in suburban Washington, D.C.
.. Nor should the Democrats wait to formally take control of the House in January. The House Democratic leadership should pledge now that if they win a majority, they will conduct an impeachment investigation, to get to the truth. Doing so today would make clear to the Senate Republicans that if they rush to judgment, in the absence of a full and fair investigation, there will still be an investigation.
.. Of course, even if the House impeached Mr. Kavanaugh, it would still take a two-thirds majority in the Senate to convict and remove him from the Court. But the Senate vote would surely have at least something to do with the merits of the House’s case: If a full and fair investigation shows that Mr. Kavanaugh has lied regarding the incident — he has denied it categorically and says nothing even remotely like it ever occurred — Republican senators may find it hard to vote “no” in the #metoo era. It would be a terrible blow to the legitimacy of the Supreme Court, of course, but this is the risk that Senators McConnell and Grassley seem willing to take.
.. Moreover, an impeachment investigation could also encompass allegations that Mr. Kavanaugh has committed perjury before the Senate, twice, related to his work on the nomination of District Judge Charles Pickering to be a judge on the Court of Appeals for the Fifth Circuit. Under oath, both in 2006 and in 2018, he said he had no involvement with the White House strategy sessions associated with Judge Pickering’s nominations. Subsequently released emails, involving these sessions, suggest that these answers were at best misleading and at worst totally false.
.. Attending a strategy session as a White House staffer is not a crime. Lying under oath to the Senate Judiciary Committee, on the other hand, is. Perjury would be a perfectly justifiable, and constitutional, basis for impeachment.
.. Federal judges, including members of the Supreme Court, should not be impeached based on their judicial rulings or philosophy.
.. proceedings should be strictly limited to questions associated with his alleged intentional and deliberate efforts to mislead the Senate about his character and fitness to serve.
.. We do not know the truth of the troubling allegations against Judge Kavanaugh. But, before someone is confirmed to the Supreme Court, good faith efforts to discover the truth should be made. And if the Senate won’t conduct a credible investigation now, the House should offer its assistance next year.

Trump’s ‘Perjury Trap’: Confessing to Obstruction of Justice or Lying About It

Rudy Giuliani tells Axios that his client, President Trump, is currently willing to speak to Special Counsel Robert Mueller on the condition that he not be asked about two subjects: why Trump fired FBI director James Comey, and what Trump said to Comey about the investigation of former national security adviser Michael Flynn.

You might wonder if the specificity of this demand sounds just a wee bit suspicious, as if Trump’s lawyers are pointing frantically at a locked door at a crime scene and shouting “Don’t go in there!” You would be right.

.. The Russia scandal has followed an eerily similar fact pattern to Watergate. Both cases feature as the central underlying crime the burglary of private files from the Democratic National Committee in order to give Republicans an advantage in a presidential campaign. Both cases also feature the president leaning on the FBI to quash an investigation that might connect the burglary to the president and his inner circle.

..  We are accustomed — not only by Watergate but by every criminal or detective drama — to expect evidence to mount to a crescendo over time. Nobody knows quite how to respond to the spectacle of a president committing high crimes and misdemeanors in his first few weeks in office, and then simply confessing to them casually in a subsequent television interview.

.. A perjury trap is a real thing. The term describes when prosecutors lure a witness into giving false testimony, usually for reasons other than covering up a crime, knowing they can prove the claim was false, and then nail them for perjury.

.. The impeachment of President Clinton was a classic perjury trap. Special Prosecutor Ken Starr asked the president about an affair with Monica Lewinsky, knowing Clinton — like most people who have affairs, especially politicians — would lie about it.

.. Asking Trump about his attempt to manipulate his FBI director is not a perjury trap. The question is not extraneous to a crime, it is a crime. He was very consciously attempting to stop an investigation into his administration. The mere fact that his lawyers are discussing it well in advance indicates that the subject matter is not a perjury trap, because the “trap” aspect involves the witness not knowing beforehand that the question is designed to produce a lie.

Trump’s lawyers have presumably concluded that they have no defense of his obstruction of justice. Faced with a choice between admitting to obstruction of justice, or denying it and risking perjury, Trump’s choice is to avoid the question altogether.