And Justice Kavanaugh cannot be impeached for conduct before his promotion to the Supreme Court. Article III provides that judges “hold their Offices during good Behavior,” so that a judge can be removed only for “high Crimes and Misdemeanors” committed during his term in office.
That puts inquiry into allegations about Justice Kavanaugh’s conduct as a teenager and young adult well outside Congress’s investigative authority, along with any claims that he misled the Judiciary Committee. Such claims could be reviewed only as part of a criminal investigation by federal prosecutors based on a referral from the Senate, the only body that may decide whether his testimony contained “material” misrepresentations. For the House to inquire into this matter would impermissibly encroach on the Senate’s advice-and-consent power.
.. And it is the Supreme Court’s countermajoritarian character that made possible the decisions, such as Roe v. Wade and Obergefell v. Hodges, that progressives now fear are at risk of being overturned or pared back
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.
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.
1. This was a contrived eleventh-hour ambush of the Kavanaugh nomination. From our editorial:
The hearing will probably degenerate into a political circus, given the theatrics at the first round of hearings even before a charge of sexual assault was on the table. The Democrats have conducted themselves disgracefully throughout this process, with their handling of this charge a new low and new depths sure to follow. But a public airing was unavoidable, certainly once both Kavanaugh and his accuser said they were willing to testify. We hope Republicans don’t blink from asking Ford tough questions about her account, even though such due diligence will be portrayed as rank sexism by Democrats and the media.
Absent any compelling new evidence that backs up the charge, we continue to strongly support Kavanaugh’s confirmation. We believe he’d make an excellent justice. In such a case, when emotions are high, a healthy republic should hew to basic principles of fairness. A good man and deserving judge should not be barred from the high court because of an unproven and almost certainly unprovable accusation of wrongdoing.
.. Andy: Our ace on this matter gives a thorough history lesson on the Democrats’ politicizing of the SCOTUS-nominee process (exclusively for GOP nominees!). From his savaging:
Justices Ginsburg and Breyer were well qualified. But, of course, so had been Bork and Thomas. Because they were Democrats, however, Ginsburg and Breyer sailed through. The two things Democrats and Republicans have in common are 1) abiding respect for the personal integrity and legal acumen of Democratic judicial nominees and 2) effective acceptance of the Democrats’ claimed prerogative to “Bork” any Republican court nominee, no matter how impeccably credentialed, no matter their obvious integrity.
.. Republicans have defeated Democratic nominees, but they never Bork them. They never demagogue Democratic nominees as sex offenders, racists, or homophobes. There are no “Spartacus” moments.
.. Even when Republicans are put off by a Democratic nominee’s progressive activism, they seem apologetic, quick to concede that the progressive in question adheres to a mainstream constitutional philosophy — one that is championed by leading American law schools and bar associations because it effectively rewrites the Constitution to promote progressive pieties.
.. Old GOP hands then typically vote “aye” while mumbling something about bipartisanship and some “presumption” that the president is entitled to have his nominees confirmed (a grant of deference that Democrats do not reciprocate, and that actually applies only to offices in the executive branch that exercise the president’s own power, not to slots in the independent judicial branch).
Even in 2016, when Republicans blocked Merrick Garland, President Obama’s late-term gambit to fill the vacancy created by the titanic Justice Antonin Scalia’s death, there was no besmirching of Judge Garland’s character. It was pure political calculation and exactly what Democrats would have done if roles had been reversed (minus the character assassination).
.. In substance, she “deliberately misled and deceived” her fellow senators, with the “effect of impeding discovery of evidence” relevant to the performance of their constitutional duties. No one should know better than Feinstein herself that such deceptive and obstructive conduct, widely regarded as “unacceptable,” “fully deserves censure,” so that “future generations of Americans . . . know that such behavior is not only unacceptable but also bears grave consequences,” bringing “shame and dishonor” to the person guilty of it and to the office that person holds, who has “violated the trust of the American people.” These quoted words all come from the resolution of censure Feinstein herself introduced concerning President Bill Clinton’s behavior in connection with his sex scandal. She can hardly be heard to complain if she is held to the same standard.
Comparison with other past censure cases only makes Feinstein’s situation look worse. The last three senators censured, Thomas Dodd, Herman Talmadge, and Dave Durenberger, were all condemned for financial hanky-panky: converting campaign contributions to personal use and the like. They were all found to have brought the Senate into “dishonor and disrepute” even though nothing they had done implicated the Senate’s performance of its constitutional duties. Feinstein, in sharpest contrast, sought to keep her committee from timely and properly investigating an apparently serious charge of misconduct, and is still doing so, even in the face of criticism from all (or most) quarters.