Karl Rove argues for Brett Kavanaugh
Evangelical Leaders Are Frustrated at G.O.P. Caution on Kavanaugh Allegation
Worried their chance to cement a conservative majority on the Supreme Court could slip away, a growing number of evangelical and anti-abortion leaders are expressing frustration that Senate Republicans and the White House are not protecting Judge Brett M. Kavanaugh more forcefully from a sexual assault allegation and warning that conservative voters may stay home in November if his nomination falls apart.
Several of these leaders, including ones with close ties to the White House and Senate Republicans, are urging Republicans to move forward with a confirmation vote imminently unless the woman who accused Judge Kavanaugh of sexual assault, Christine Blasey Ford, agrees to share her story with the Senate Judiciary Committee within the next few days.
The evangelical leaders’ pleas are, in part, an attempt to apply political pressure: Some of them are warning that religious conservatives may feel little motivation to vote in the midterm elections unless Senate Republicans move the nomination out of committee soon and do more to defend Judge Kavanaugh from what they say is a desperate Democratic ploy to prevent President Trump from filling future court vacancies.
“One of the political costs of failing to confirm Brett Kavanaugh is likely the loss of the United States Senate,” said Ralph Reed, the founder of the Faith and Freedom Coalition who is in frequent contact with the White House.
“If Republicans were to fail to defend and confirm such an obviously and eminently qualified and decent nominee,” Mr. Reed added, “then it will be very difficult to motivate and energize faith-based and conservative voters in November.”
The evangelist Franklin Graham, one of Mr. Trump’s most unwavering defenders, told the Christian Broadcasting Network this week, “I hope the Senate is smarter than this, and they’re not going to let this stop the process from moving forward and confirming this man.”
Social conservatives are already envisioning a worst-case scenario related to Judge Kavanaugh, and they say it is not a remote one. Republican promises to shift the Supreme Court further to the right — which just a few days ago seemed like a fait accompli — have been one of the major reasons conservatives say they are willing to tolerate an otherwise dysfunctional Republican-controlled government. If Judge Kavanaugh’s nomination fails, and recent political history is any guide, voters will most likely point the finger not at Mr. Trump but at Republican lawmakers.
.. The reason the prospect of Judge Kavanaugh’s defeat is so alarming to conservatives is that they fear he could be the last shot at reshaping the nation’s highest court for years. If Republicans were to lose control of the Senate, where they hold a 51-to-49 majority, in November, Mr. Trump would find it difficult to get anyone confirmed before the end of the year. Even if Senate leaders were able to schedule hearings and hold a vote, there could be defections from Republican senators uneasy about using a lame duck session to ram through a lifetime appointment that would tip the court’s ideological balance.
.. Robert Jeffress, pastor of First Baptist Dallas and one of Mr. Trump’s most vocal evangelical supporters, said he did not know who was telling the truth, Judge Kavanaugh or Dr. Blasey. “But I can say with absolute certainty,” he added, “that the Democrats don’t care who is telling the truth. Their only interest is in delaying and derailing this confirmation.”
.. The importance of the Supreme Court to the Trump White House and the Republican Party is difficult to overstate. Mr. Trump has heralded Justice Neil M. Gorsuch and Judge Kavanaugh, his two Supreme Court nominees, as crowning achievements in an otherwise uneven presidency.
.. Conservative groups have spent tens of millions of dollars building the men up as legal luminaries, gentleman scholars and the fulfillment of Mr. Trump’s campaign promise to nominate judges who have “a record of applying the Constitution just as it was written,”
.. A relatively smooth, predictable confirmation fight has also been a key part of Republicans’ strategy to keep the Senate. In the 10 states that Mr. Trump won where Democratic senators are up for re-election, Republicans have attacked Democrats for either opposing the judge or remaining noncommittal.
.. some are also arguing that they cannot be indifferent and insensitive to a victim.
.. But many conservatives see little use in being deferential when, they argue, the Democrats play by no such rules. They look back at the failed confirmation of the Republican nominee Robert Bork in 1987, whose writings on civil rights were picked over by Democrats, and the 1991 hearings for Clarence Thomas, who faced testimony from Anita Hill that he had sexually harassed her, and they see a sophisticated and ruthless Democratic machine bent on discrediting their nominees.
.. “Republicans are right, as a moral matter as well as a political matter, to take allegations of misbehavior like this seriously,” said Frank Cannon, president of the American Principles Project and a veteran social conservative strategist. “At the same time, we’ve seen anything and everything thrown at Republican Supreme Court nominees for decades,” he added, noting that Republicans have been slow to understand that Democrats are “playing by different rules.”
.. Privately, some conservatives were thrilled that Dr. Blasey and her lawyer have resisted the opportunity to testify in the Senate on Monday and demanded instead that the F.B.I. first investigate her claims. That would be just enough, they said, to give Republicans the justification for moving forward without her. The Republican chairman of the Senate Judiciary Committee, Charles E. Grassley of Iowa, made clear on Wednesday that he would not postpone a hearing past Monday.
.. sets up a fight that Republicans could win in the Senate but might ultimately lose at the ballot box in November. The level of outrage could run so hot among Democrats, who would likely use every procedural and political tool at their disposal to delay confirmation, that it could provide even more fuel to an already energized liberal base.
.. “Given the confirmation theatrics, followed by this allegation that was held until the last moment, this could be seen as another partisan attack and could actually fuel conservative turnout,” said Tony Perkins, president of the Family Research Council.
.. Conservatives are likely to use protests and other forms of resistance to Judge Kavanaugh as a way to clarify for unmotivated Republican voters what Democratic control of the Senate means: a Trump-nominated Supreme Court justice would never be confirmed again.
“If Chuck Schumer is majority leader and Dianne Feinstein is chairman of the Judiciary Committee,” said Mr. Reed of the Faith and Freedom Coalition, “it will be open season on any Trump nominee to the federal bench at any level of the judiciary.”
The Trial of the Century
Will 21 young plaintiffs ultimately be able to persuade a conservative-dominated US Supreme Court that the federal government is violating their constitutional right to a livable planet? It depends on whether the Court is willing to heed the scientific evidence.
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.
— “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.”
.. In 1992, countries, including the US, China, India, and all European states (and a total of 189 by 2006) accepted responsibility for addressing climate change. Meeting at the “Earth Summit” in Rio de Janeiro, they agreed to stabilize greenhouse gases “at a low enough level to prevent dangerous anthropogenic interference with the climate system.”
The agreement did not specify what level is low enough to prevent such dangerous interference with our climate, but the scientific consensus is that to allow the global temperature to rise to an average of more than 2°C above pre-industrial levels is to risk catastrophe.
.. The first climate litigation to win a positive decision was Urgenda Foundation v. The State of Netherlands, in which a Dutch court ruled, in 2015, that the government must ensure that the country’s emissions are cut by one quarter within five years.
.. Juliana v. United States is by far the most significant climate case to date. If ever a case has deserved to be called “the trial of the century,” this is it.
.. The US is the world’s second-largest greenhouse-gas emitter, and its per capita emissions are about twice those of the largest emitter, China.
.. If we take the view that every person on this planet is entitled to an equal share of the atmosphere’s capacity to absorb our greenhouse-gas emissions, then the US is emitting 3.5 times its fair share. The US emits more greenhouse gases than India, for example, although it has only one-quarter of the population.
Moreover, the principle of equal per capita emissions is generous to the old industrialized countries, because it ignores their historical responsibility for the past emissions that have led to the situation we face today.
.. The plaintiffs claim that their government’s active contribution to climate change has violated their constitutional rights to life, liberty, and property. When the government sought to prevent the case from being heard, the federal district court of Oregon issued a historic ruling that “the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”
.. When Juliana v. United States is appealed to the US Supreme Court, as seems inevitable, the question may no longer be whether the preservation of the plaintiffs’ constitutional rights requires “a climate system capable of sustaining human life”; it undeniably does. Instead, the Court will have to decide whether it is willing to heed the scientific evidence that the actions of the US government are indeed jeopardizing the survival of human life on our planet. If it is, even the most conservative justices will find it difficult to escape the conclusion that the government is in violation of the US Constitution.