Trust in the Supreme Court has hit a historic low. A Quinnipiac poll last week found that only 30 percent of registered voters approve of it.
Why don’t Americans trust the Supreme Court?
Because its opinions appear arbitrary, capricious, and partisan. Just look at Dobbs vs. Jackson Women’s Health Organization, which reversed Roe v. Wade a year ago today — and with which the majority of Americans disagree.
And because Supreme Court justices have been subject to bribery.
Last week, ProPublica detailed how billionaire Paul Singer, a GOP megadonor, flew Justice Samuel Alito to Alaska on Singer’s private plane at no cost. The trip would have cost Alito an estimated $100,000, not including accommodation, food, and wine.
Alito never disclosed any of this, apparently violating federal financial disclosure rules applying to all federal officials, including Supreme Court justices.
And Alito failed to recuse himself from participating in a case of financial significance to Singer.
In April, ProPublica revealed that billionaire Republican donor Harlan Crow gave Justice Clarence Thomas free luxury vacations and other gifts over a 20-year period — none of which was disclosed by Thomas.
Crow also purchased two houses from Thomas and agreed to let Thomas’s mother live in one of them at no cost. In addition, Crow paid the private school tuition for a student Thomas has described as a person “he is raising as a son.”
Thomas has failed to recuse himself from participating in cases of financial interest to Crow.
Orchestrating these bribes has been Leonard Leo, who last year received an unprecedented $1.6 billion donation to continue his work stacking the courts with ideologically conservative jurists. Leo played a pivotal role in the selection of the three Supreme Court justices appointed by Trump.
What to do to restore trust of the highest court? Congress should enact three reforms:
Congress should enact a code of ethics on Supreme Court justices. It would: (1) ban justices from receiving personal gifts from political donors and anyone with business before the court, (2) clarify when justices with conflicts of interest should remove themselves from cases, (3) prohibit justices from trading individual stocks, and (4) establish a formalprocess for investigating misconduct.
2. Term limits
Article III of the Constitution says judges may “hold their office during good behavior” but does not explicitly give Supreme Court justices lifetime tenure on the highest court — even though that’s become the norm.
Term limits would prevent unelected justices from accumulating too much power over the course of their tenure — and would help defuse what has become an increasingly divisive confirmation process.
Congress should limit Supreme Court terms to 18 years, after which justices move to lower courts.
3. Expand the court
The Constitution does not limit the Supreme Court to nine justices. In fact, Congress has changed the size of the court seven times. It should do so again in order to remedy the extreme partisanship of today’s Supreme Court.
Rather than allow Republicans to continue exploiting the system, expanding the Supreme Court would actually unpack the court.
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Enacting these reforms won’t be easy. Big monied interests will fight to keep their control of the Supreme Court.
But these three reforms have significant support from the American people, who have lost trust in the court.
The Supreme Court derives its strength not from the use of force or political power, but from the trust of the people. With neither the sword nor the purse, trust is all it has.
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[Today’s coffee klatch will be posted at 9 am PT, 12 pm ET.]
Supreme Court Judgments Undermine the US as a Nation
by John Lawrence
So Harvard can't admit students based on race but can admit legacy student based on the fact that their parents gave money to Harvard. First of all Harvard is a private institution. Why can't it decide for itself how to admit students based on policies of their own making. Why is the government telling Harvard how to admit students. Harvard as a private entity within the United States is entitled to its own freedom without government interference as dictated by the Supreme Court. This conservative Supreme Court will not hesitate to tell government to get out of the affairs of private individuals as it did in the case of the web designer who didn't want to design web sites for gays. Yet it wants to dictate to Harvard what its admission policies should be. If I started a college and wanted to admit only blacks, I suppose the Supreme Court would have an issue with that, but then isn't my admission policy free speech? It seems that everything else is. Whatever anyone wants to do, providing the Supreme Court agrees with it, it declares that that is free speech. The principle is that it doesn't want the government to set any policies at all. According to their philosophy government should be policy neutral. Government should just set a level playing field and then get out of everyone's business. But in the Harvard case they declared just the opposite should hold. The government should be in the business of setting admission policies according to the Supreme Court.
According to conservative philosophy by which the Supreme Court is dominated, the Federal government should have no role in public policy whatsoever. So one of the techniques it uses is to refer everything back to the states. The states should set all policies, not the Federal government. So if a state wants to ban books, it has a perfect right to do so. If a state wants to ban trans males from female sports or bathrooms, its has a right to do so. But of course the Federal government has no right to weigh in on one side or the other. This is the philosophy for overturning Roe vs Wade. Each state should set its own abortion policy. The Federal government does not have a right to set this or any other policy for the country as a whole. Presumably the Supreme Court at some point will also weigh in on the illegality of the Federal government setting policies on the environment and in particular climate change. When all is said and done the only legitimate function of the Federal government will be to have the largest defense department and defense budget in the world. The function of the Federal government will be confined to waging war.
So according to the Supreme Court's philosophy, all social programs like Obamacare or Social Security or Medicare will be relegated to the states. All Federal programs will be deemed illegal. The United States will not even be a nation any more in the sense that France or Germany or China is a nation. The United States will not be capable of having a national policy regarding climate change or anything else. The United States as a nation will be totally weak when it comes to anything except war. There the nation will be all powerful. But when it comes to anything that actually benefits human beings whether here at home or abroad, the United States will be little more than a hollow shell. Other nations will look at the United States, as Nixon stated, as a "pitiful helpless giant." Other nations will not trust the United States since already they know that national policies can change every four years based on which party is in power. Now they also know that the United States has a Supreme Court which is determined to undermine national power at every step and refer everything back to the states.
One ruling hidden inside one of the Supreme Court’s horrendous decisions last week hasn’t got nearly the attention it deserves: the court’s radical expansion of who has standing to bring cases before the court.
When I argued cases before the Supreme Court in the 1970s, a challenger had to show they’d suffered a specific injury that could be remedied by relief from a federal court. If they failed to establish such standing, the high court would dismiss the case without considering the merits of their claim.
The necessity to establish standing to bring a case before the Supreme Court has been an important guardrail preventing the court from getting into matters the Constitution has reserved for the other branches of government.
But on Friday, in Biden v. Nebraska — striking down President Biden’s student loan program — the majority decided that Missouri had standing to challenge the program. Why? Because a quasi-independent state agency — the Missouri Higher Education Loan Authority (MOHELA) — might suffer financial losses from the loan program. As Chief Justice John Roberts wrote for the majority:
“The … plan harms MOHELA in the performance of its public function and so directly harms the State that created and controls MOHELA. Missouri thus has suffered an injury in fact sufficient to give it standing to challenge the Secretary’s plan.”
Directly harms the state? Hello?
As Justice Elena Kagan wrote in her dissent, “In adjudicating Missouri’s claim, the majority reaches out to decide a matter it has no business deciding” — with a ruling that “blows through a constitutional guardrail intended to keep courts acting like courts.”
From now on, a state can challenge any action of the federal government merely by setting up a quasi-independent agency indirectly affected by it.
Bad enough that the court’s majority is now making up its own laws — disregarding the Supreme Court’s own precedents it disagrees with, deciding Congress hasn’t authorized certain actions it disagrees with, and finding certain practices it disagrees with to be unconstitutional.
Bad enough that three of the justices now in the majority were appointed by a man who lost the popular vote, who was impeached twice, and who promoted an insurrection against the United States. And two others were appointed by a man who also lost the popular vote and led the nation into war in Iraq under false pretenses.
Now that the court has obliterated the guardrail on what it can consider, there are no limits to what this least democratic branch of government — and its extremist majority — might do.
Which is why it’s so important to reform the court — in ways I’ve suggested here.
Many people consider voting the sine qua non defining characteristic of democracy. However, the inventors of democracy, the ancient Greeks, did not. Their legislative body, the Council of 500, was chosen not be voting but by lot, in other words randomly. Arguably, random selection is more democratic since it guarantees a legislative body which actually represents and reflects all of the people. Voting, at least in the US, does not result in a legislature that reflects the actual composition of the electorate because the candidates need a lot of money even to get on the ballot. Random selection requires no money, just a complete list of all citizens. A legislature which reflects the actual composition of the electorate is more democratic than one that reflects only the composition of the moneyed class. Therefore, voting must be disassociated from democracy in the larger sense. So let's ask the question how is the Chinese legislature, the National People's Congress, chosen? It is chosen by the people by voting although the nominees are chosen by the Communist Party. It could be argued and debated how well the National People's Congress reflects the actual composition of the electorate. It could also be argued which system, the American system or the Chinese system is more democratic in the sense that the national legislative body represents and reflects the actual composition of their respective electorates. My guess is that the American two party system is only slightly more democratic than the Chinese one party system. Someone should do a study and comparison.
In addition to getting money out of politics, random selection, which is also known as sortition, would end the districting system and gerrymandering. The House would reflect the composition of the US electorate. Instead of an elaborate system of voting and majority rule, all you would need is a data base of all 330 million Americans and a program for random selection. Voting systems in and of themselves are controversial (which of the several available voting systems should be used), and majority rule is notorious for leaving out minorities. The US system know as first past the post practically determines that the US will be a two party system. Third parties contribute the "spoiler effect," which we've seen all to often in Presidential politics, for example, when Ross Perot and Ralph Nader ran as third party candidates. They just take votes away from the party that they are closer to on the political spectrum helping the other party to win. The Chinese have a one party system and the US has a two party system which is probably only somewhat more democratic than the Chinese system if the measure of democraticness is that the legislature represents a reflection of all the people. The European parliamentary system is a multiparty system where minorities are better represented than in the US or Chinese systems, and hence, is more democratic than either of them. A further benefit of random selection us that extremists and extreme parties are unlikely to be over represented in the outcome. In fact political parties would have no reason to exist if the legislature was chosen by sortition.
Rousseau says in The Social Contract, " 'Election by lot,' says Montesquieu, 'is of the nature of democracy. ' I agree , but how is it so? 'The lot,' he continues, 'is a mode of election which mortifies no on; it leaves every citizen a reasonable hope of serving his country.' "Montesquieu , by the way was one of the chief architects of society that the Founders took as an example in their design of the US Constitution. Sortition was used in the Atheniandemocracy. With few exceptions, all magistrates were chosen by lot, beginning with the archons in 487–486 BC; likewise the Boule (council) of 500 and the juries of the law courts were chosen by lot. Sortition is used in the American system for jury selection.
My reform of the American system would be #1) The legislature should be chosen by sortition to serve 4 year terms. Pay would be high enough to induce the average person to want to serve. The only requirement would be US citizenship. #2) The Senate would be chosen by sortition among the people who met certain educational and experiential background requirements. The term would be 6 years. #3) The Supreme Court would be chosen from among the people with even more stringent background requirements especially in law and government. The term would be 8 years. #4) The President would be chosen by means of an electoral system with an advanced method of voting like approval voting. The electoral college would be abolished. The President would serve for 4 years with the possibility of serving two terms if the people elected him again. At any level of political participation people could opt out of the pool of which otherwise they might be randomly selected. We have already seen in 2016 with the election of Donald Trump how extremists can be elected by purveying false information and outright lies creating a cult following. The elimination of political parties altogether would transform politics from the Chinese one party system, the American two party system and the European multiparty system to in fact a more democratic no party system.
Nowhere in the world does a pure democracy exist not even in the US. Witness one judge, Matthew Kacsmaryk, who was not even democratically elected to that position, is the would be dictator over one issue - abortion medicine. How can this be democracy? None of the Supreme Court Justices who will make the final decision on this matter were democratically elected. They were all appointed by Donald Trump as was Kacsmaryk. Not only that, but this or some other appointed judge could decide unilaterally to take other drugs off the market. What else could they decide? The rule of law in the US is in shambles. Mini dictators in the form of appointed judges can hold sway over a whole host of issues. In fact the US does not even make the top ten list of the most democratic countries in the world according to the Economist Intelligence Unit which compiles an annual list in its Democracy Index. Stanford University political scientist Larry Diamond has a similar list, maintaining that any democracy must include four key elements:
A political system for choosing and replacing the government through free and fair elections
The active participation of the people, as citizens, in politics and civic life
Protection of the human rights of all citizens
A rule of law in which the laws and procedures apply equally to all citizens
The US ranks 36th on a list Ranking Countries by Quality of Democracy behind such countries as Costa Rica, Spain, Italy, Portugal and Uruguay, Slovakia and the Czech Republic!
One can see why when one appointed judge can dictate an issue for the whole country! The Washington Post reported:
As a lawyer for a conservative legal group, Matthew Kacsmaryk in early 2017 submitted an article to a Texas law review criticizing Obama-era protections for transgender people and those seeking abortions.
The Obama administration, the draft article argued, had discounted religious physicians who “cannot use their scalpels to make female what God created male” and “cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children.”
But a few months after the piece arrived, an editor at the law journal who had been working with Kacsmaryk received an unusual email: Citing “reasons I may discuss at a later date,” Kacsmaryk, who had originally been listed as the article’s sole author, said he would be removing his name and replacing it with those of two colleagues at his legal group, First Liberty Institute, according to emails and early drafts obtained by The Washington Post.
Yet to hear American politicians talk about it, you would think that the American Constitution is sacrosanct, paramount and equivalent to Moses receiving the Ten Commandments on two tablets of stone. You would think that it is so perfect that it is unthinkable that anyone would want to try to improve it in any way. People take a sacred oath to defend it. It is inconceivable to want to try and replace it like many other countries have done with their constitutions over the years. It is like the Bible, something that cannot be transcended without being accused of heresy, treason or worse.The American Constitution has not been updated in 234 years! On the other hand the current Constitution of France, for instance, was adopted on 4 October 1958. It is typically called the Constitution of the Fifth Republic, and it replaced the Constitution of the Fourth Republic of 1946 ... .
Meanwhile as Republicans exploit every conceivable loophole in the American Constitution, and the Second Amendment is literally tearing the nation apart, the US seems to be making it clear that it is a Republic rather than a Democracy. As Benjamin Franklin said when asked what the US government represented, "It's a republic, my dear, if you can keep it." He didn't even pretend that it was a democracy. While we criticize foreign dictators, we have a homegrown dictator by the name of Matthew Kacsmaryk right here.
Mass Murderers Get Much More Than Their 15 Minutes of Fame
by John Lawrence
The perpetrator of the recent mass murder in the Q night club wants to be addressed as "they" and "them" because he is "non-binary." How about if we address him as "you sonofabitch." Barely, have we gotten done with one mass murder in the news cycle than another one comes along to take precedence. The news these days consists mainly of covering one mass murder after another. Mass murderers are lining up. Next? Better make sure the news cycle is clear so that your atrocity takes over the headlines. Then we hear all about the perpetrator's messed up childhood, and, if there is a court trial, the news media dutifully covers it giving the murderer another 15 minutes of fame at least. Recently, families of the victims were upset when a mass murderer was given a sentence of free room and board for life with no possibility of ever having to make a living for himself rather than the death penalty. The news media and a coterie of lawyers, not to mention gun manufacturers and merchandisers are making a small fortune off of the mass murder business. Here's an idea; mass murderers caught in the act should immediately be taken out and shot thus avoiding the news cycle, numerous lawyers, pundits pontificating, authors hawking books and displays of grieving and mourning. It's all become a predictable big business. Yes, the GDP would decrease slightly, but who cares. We have become a mass culture of mass murder spectacles.
So the Second Amendment says: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." What is well-regulated, much less militia-like about individuals going out and buying an AK-47 and committing mass murder over some real or perceived grievance? By the way, the news media informs us that "the police have not yet discovered a motive." They never do. What possible motive could there be for mass murder that would justify it? The motive is the fact that the mass murderer is fucked up. Saying that he - and it always is a "he" - is mentally ill, is a means of evoking sympathy for someone who deserves none. But if individual mass murderers are fucked up, so is the Second Amendment. The Supreme Court decided in the Heller case that the Second Amendment gave individuals the right to own (and use) guns. What about the "well regulated militia" bullshit? The Supreme Court basically backed the rights of mass murderers. Now according to recent reports: Six million Americans carried guns daily in 2019, twice as many as in 2015. And this: "The trend is expected to continue, after the supreme court ruling earlier this year overturning strict limits on public gun-carrying." Whose side is the Supreme Court on?
Pogo said: "We have met the enemy and he is us." True. The enemy is not "out there." It is the very wonderful American people themselves and the very vaunted Supreme Court which is so concerned about preserving life in the womb and so unconcerned about preserving life once it's outside the womb. After spending a trillion dollars a year on our military and military-industrial complex, it seems we as a nation are powerless to stop Americans from self immolating. So Americans have to come to expect one mass killing after another in assembly line like fashion. Next? They are already getting in line. Fame and fortune and a free meal ticket for life awaits. Meanwhile, the rest of us are reminded of John Milton's poem: "we also serve who only stand and wait." The rest of us go to our boring jobs, take care of our traumatized families and hope for a better life for us and our children if the world doesn't burn up due to global warming. Please, President Biden, do something about assault rifles.
Trump's path to a second term goes through the Courts and the Republican state legislatures. It is up to the state legislatures to choose the electors who cast the state's electoral votes. So far they have always chosen those electors that are committed to cast their votes for the candidate that won the popular vote. But, as the song says: "It ain't necessarily so." It is conceivable that Trump could win the electoral votes in states in which Biden won the popular vote. Take Georgia for example. Here's how it would work. The Republican Secretary of State decides that there will be a hand recount of all 5 million votes cast in Georgia. That takes time. If the hand recount doesn't get done by November 20, Trump's lawyers could step in and ask the Supreme Court, which is controlled by conservative justices three of whom Trump appointed himself, to decide the election. This is not unprecedented. In 2000 George W Bush asked the Supreme Court to stop the recount process in Florida which they did costing Al Gore the election. If the recount had continued Gore, who won the popular vote not only in Florida but in the US generally, would have been elected. If something like this happens this year, this would give Georgia's 16 electoral votes to Trump instead of Biden.
However, Georgia's 16 electoral votes would not be enough to change the results of the election. Trump's lawyers would have to do the same process in a number of other states as well. In particular they would have to overturn the results in Pennsylvania with its 20 electoral votes. Pennsylvania, it is to be noted, also has a state legislature controlled by Republicans so it is not inconceivable. Currently Trump has 217 electoral votes including Alaska. He is winning in North Carolina with its 15 electoral votes so let's give him that. If he could use the courts and the state legislatures to flip Georgia and Pennsylvania, he would then have another 36 electoral votes for a total of 268, still not the 270 required to win the election. He needs another 2 electoral votes. Where could he find them? Let's see. Arizona's state legislature is controlled by Republicans. Let's assume Trump can do the same thing there. That would give him another 11 electoral votes bringing him to 279. Ipso facto Trump wins the election.
When the framers of the U.S. Constitution outlined the workings of the electoral college system, they didn’t specify how presidential electors should or must be chosen, leaving it up to the various state legislatures to each decide for themselves how to appoint their electors. However, the courts have decided that the states can't change the way they choose their electors after an election. This would throw the whole process into chaos. But chaos is precisely what we have now with Trump refusing to concede the election. Conservative talk show host Mark Levin has tweeted the following:
REMINDER TO THE REPUBLICAN STATE LEGISLATURES, YOU HAVE THE FINAL SAY OVER THE CHOOSING OF ELECTORS, NOT ANY BOARD OF ELECTIONS, SECRETARY OF STATE, GOVERNOR, OR EVEN COURT. YOU HAVE THE FINAL SAY -- ARTICLE II OF THE FED CONSTITUTION. SO, GET READY TO DO YOUR CONSTITUTIONAL DUTY
So if Trump and his allies can sow enough confusion into the process of determining certain states' election results, for example, calling for recount after recount, it's conceivable that Trump's lawyers will then ask the Supreme Court to intervene, and they might do the same thing they did in Bush v. Gore in 2000 and award the election to Trump. They might go even further and decide that, since the US Constitution does not specify that state legislatures must pick a slate of electors dedicated to the popular vote, they can decide for any candidate they please. This would effectively make Trump dictator because no one could ever trust election results again. Trump has a considerable base of support in the American electorate and could rely on the fact of this tremendous public support although half the nation at least wants Biden to be the next President, not Trump. After all Biden won the popular vote by over 5 million votes. But Hillary won the popular vote in 2016 and Al Gore won the popular vote in 2000. Having delegitimized the democratic process with his refusal to concede among other things, Trump hardly needs widespread skepticism about the electoral college to sow doubt about the voting process itself. Many people feel that the electoral college should be abolished and that the President should be elected by popular vote. This is only the latest blow to the American political system which is based on the wisdom of a few white men and their understanding of how things should be over 200 years ago. Yet the process can not be changed without three quarters of the states agreeing to a Constitutional amendment.
Barring a miracle, Amy Coney Barrett will be confirmed on Monday as the ninth justice on the U.S. Supreme Court.
This is a travesty of democracy.
The vote on Barrett’s confirmation will occur just eight days before Election Day. By contrast, the Senate didn’t even hold a hearing on Barack Obama’s nominee, Merrick Garland, who Obama nominated almost a year before the end of his term. Majority leader Mitch McConnell argued at the time that any vote should wait “until we have a new president.”
Barrett was nominated by a president who lost the popular vote by nearly 3 million ballots, and who was impeached by the House of Representatives. When Barrett joins the court, five of the nine justices will have been appointed by presidents who lost the popular vote.
The Republican senators who will vote for her represent 15 million fewer Americans than their Democratic colleagues.
Once on the high court, Barrett will join 5 other reactionaries who together will be able to declare laws unconstitutional, for perhaps a generation.
Barrett’s confirmation is the culmination of years in which a shrinking and increasingly conservative, rural, and white segment of the U.S. population has been imposing its will on the rest of America. They’ve been bankrolled by big business, seeking lower taxes and fewer regulations.
In the event Joe Biden becomes president on January 20 and both houses of Congress come under control of the Democrats, they can reverse this power grab. It may be the last chance – both for the Democrats and, more importantly, for American democracy.
How?
For starters, increase the size of the Supreme Court. The Constitution says nothing about the number of justices. The court changed size seven times in its first 80 years, from as few as five justices under John Adams to ten under Abraham Lincoln.
Biden says if elected he’ll create a bipartisan commission to study a possible court overhaul “because it’s getting out of whack.” That’s fine, but he’ll need to move quickly. The window of opportunity could close by the 2022 midterm elections.
Second, abolish the Senate filibuster. Under current rules, 60 votes are needed to enact legislation in that chamber. This means that if Democrats win a bare majority there, Republicans could block any new legislation Biden hopes to pass.
The filibuster could be ended with a rule change requiring a mere 51 votes. There’s growing support among Democrats for doing this if they gain that many seats. During the campaign, Biden acknowledged that the filibuster has become a negative force in government.
The filibuster is not in the Constitution, either.
The most ambitious structural reform would be to rebalance the Senate, and thereby the Electoral College.
For decades, rural states have been emptying as the U.S. population has shifted to vast megalopolises. The result is a growing disparity in representation, especially of nonwhite voters.
For example, both California, with a population of 40 million, and Wyoming, whose population is 579,000, get two senators. If population trends continue, by 2040 some 40 percent of Americans will live in just five states, and half of America will be represented by 18 Senators, the other half by 82.
This distortion also skews the Electoral College, because each state’s number of electors equals its total of senators and representatives. Hence, the recent presidents who have lost the popular vote.
This growing imbalance can be remedied by creating more states representing a larger majority of Americans. At the least, statehood should be granted to Washington, D.C. And given that 1 out of 8 Americans now lives in California – whose economy, if it were a separate country, would be the ninth largest in the world – why not split it into a North and South California?
The Constitution is also silent on the number of states.
Those who recoil from structural reforms such as the three I’ve outlined warn that Republicans will retaliate when they return to power.
That’s rubbish. Republicans have already altered the ground rules. In 2016, they failed to win a majority of votes cast for the House, Senate, or the presidency, yet secured control over all three.
Barrett’s ascent is the latest illustration of how grotesque the Republican power grab has become, and how it continues to entrench itself ever more deeply. If not reversed soon, it will be impossible to remedy.
What’s at stake is not partisan politics. It is representative government. If Democrats get the opportunity, they must redress this growing imbalance – for the sake of democracy.
Lindsay Graham effectively swore on a stack of Bibles that, if a Supreme Court vacancy occurred during an election year, the next President would get to fill that vacancy. Now he's presiding over getting President Trump's choice on the Court just a couple of days before the election. So Joe Biden would be totally within his rights to swear he would not pack the Court, and then go ahead and do it once elected. Or he's certainly within his rights to equivocate and not answer the question. After all it isn't even certain he will be elected. Second, it's not within his sole power to pack the court. Third, that might not be the most efficacious way to go. Then again, it might.
What's important here is that a progressive agenda gets implemented especially with respect to climate change. Republicans can be expected to block this agenda to the extent they have the power to do so. This whole drama is deja vu all over again. President Roosevelt faced the same dilemma over his New Deal. He had a Supreme Court not predisposed to approve his New Deal. So the whole issue of court packing came up way back in the 1930s. The Judicial Procedures Reform Bill of 1937, frequently called the "court-packing plan", was a legislative initiative proposed by U.S. President Franklin D. Roosevelt to add more justices to the U.S. Supreme Court in order to obtain favorable rulings regarding New Deal legislation that the Court had ruled unconstitutional. The central provision of the bill would have granted the president power to appoint an additional justice to the U.S. Supreme Court, up to a maximum of six, for every member of the court over the age of 70 years and 6 months.
The Supreme Court that Roosevelt was faced with had 4 conservative judges, 3 liberals and 2 swing judges. The Supreme Court that a potential President Biden will face will have 6 conservative and 3 liberal judges. It seems a weak point in the US Constitution that the worst President in US history has gotten to appoint one third of the Supreme Court Justices. Be that as it may, and assuming the progressive legislation comes before the Supreme Court in a Biden administration, then the composition of the Court becomes of paramount importance. At that point it would be crucial to consider the question of appointing more Justices to the Court in order to change the conservative bias. First of all in order for any piece of legislation to get to the Supreme Court, Democrats would have to control both branches of Congress and they would have to get rid of the filibuster. Otherwise, if there were even one Republican Senator, he or she could quash any progressive legislation. So the issue of packing or not packing would be moot. Supposing that some Green New Deal legislation gets enacted into law, the court suits would begin and undoubtedly would come before the Supreme Court.
Whatever the political differences among the justices of the 1937 Supreme Court, the clash over the constitutionality of the New Deal initiatives was tied to clearly divergent legal philosophies which were gradually coming into competition with each other: legal formalism and legal realism. This debate spilled over into the realm of constitutional law. Realist legal scholars and judges argued that the constitution should be interpreted flexibly and judges should not use the Constitution to impede legislative experimentation. One of the most famous proponents of this concept, known as the Living Constitution, was U.S. Supreme Court justice Oliver Wendell Holmes, Jr., who said in Missouri v. Holland the "case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago". The conflict between formalists and realists implicated a changing but still-persistent view of constitutional jurisprudence which viewed the U.S. Constitution as a static, universal, and general document not designed to change over time.
Roosevelt did one of his famous Fireside Chats advocating for legislation that would pack the Supreme Court. The public was equivocal about its approval. On average, about 46% of each polling sample indicated opposition to President Roosevelt's proposed legislation. And it is clear that, after a surge from an early push by FDR, the public support for restructuring the Court rapidly melted. In the 18th and 19th centuries the size of the Court had been variously expanded and contracted so there is precedent for changing the size of the Court. Despite all this Roosevelt was unsuccessful in packing the Court. Yet he did win out due to the fact that some of the Justices died and some retired leaving FDR with the ability to appoint 8 new Justices to the Court. This enabled FDR's New Deal legislation to get Court approval and become accepted law. If not for this stroke of fate, there probably wouldn't have even been a New Deal.
There are a number of lessons here for Joe Biden if he gets to be President and attempts to pass a "Biden Green Deal." He and progressive Democrats should study the history of FDR's Court packing attempts and hopefully learn lessons thereby.
Is This Any Way to Choose Supreme Court ... Or a President?
by John Lawrence, September 27, 2020
So we have a situation in which a President who lost the popular vote has been able to pick 3 Supreme Court Judges. This is what our Constitution has led us to? The US Constitution is out of date, archaic and dysfunctional. It needs to be either revised or rewritten from scratch. Many other countries have done just that with their constitutions. There are better ways to choose a Supreme Court than to have a President choose the composition thereof. Other ways the Constitution is dysfunctional: the electoral college, the fact that the leader of the Senate has a veto over any legislation the People's House creates and the filibuster. I would also add the Second Amendment to the list.
Here is a better way to choose the Supreme Court. Have the House of Representatives vote on the composition of it and have each judge only serve a 10 year term, not a life term. Also have in place qualifications for nominees. In other words not everyone can run for a Supreme Court Judgeship. Only those who are well qualified should be able to. Here are some of the basic qualifications: a Doctor of Law degree from a major University (in other words the highest law degree one can get), a career either in teaching or the practice of law for at least 20 years, having argued at least one case before the Supreme Court. The Supreme Court should be democratically elected at least by representatives elected by the people which at present is the US House of Representatives, and not subject to Senate approval. Let me note that I'm not an expert; I'm not a lawyer so anyone should take my recommendations with a grain of salt.
It is obvious that our current Constitution allows for the opening of a can of worms in the election of the President as President Trump has pointed out and intends to exploit. He expects that the balloting will be so mixed up that the Republican party will be able to challenge the outcome in a number of battleground states with the result that the selection of the President will end up in the Supreme Court, three of whose Justices he has picked himself. This is exactly why a Constitution should not let the President select members of the Supreme Court, and they should be democratically elected instead by a vote of the House.
I find it amazing that practically no research has been done on how the Supreme Court should be selected according to my limited Google search. In a democracy these courts should be democratically elected by a representative body within the boundaries that judges or Justices should be highly qualified to even be considered. What is unreasonable about these considerations except for the fact that they don't accord with our preexisitng Constitution? It has become obvious that our 231 year old Constitution, the world's longest surviving written charter of government, is not only out of date, it's anti-democratic in major ways. It was written at a time when only white, propertied men were allowed to vote, at a time when the writers didn't trust the hoi polloi, the rabble, the uneducated, the poor or those not of the same ethnic background as they were.
Anyone still unsure of how (or even whether) they’ll vote in the midterms should consider this: All three branches of government are now under the control of one party, and that party is under the control of Donald J. Trump.
With the addition of Kavanaugh, the Supreme Court is as firmly Republican as are the House and Senate.
Kavanaugh was revealed as a fierce partisan – not only the legal advisor who helped Kenneth Starr prosecute Bill Clinton and almost certainly guided George W. Bush’s use of torture, but also a nominee who believes “leftists” and Clinton sympathizers are out to get him.
He joins four other Republican-appointed jurists, almost as partisan. Thomas, Alito, and Roberts have never wavered from Republican orthodoxy. Neil Gorsuch, although without much track record on the Supreme Court to date, was a predictable conservative Republican vote on the Court of Appeals for the Tenth Circuit – which is why the Heritage Foundation pushed for him and Trump appointed him.
Even under normal circumstances, when all three branches are under the control of the same party we get a lopsided government that doesn’t respond to the values of a large portion of the electorate.
But these are not normal circumstances. Donald Trump is President.
Need I remind you? Trump is a demagogue who doesn’t give a fig for democracy – who continuously and viciously attacks the free press, Democrats, immigrants, Muslims, black athletes exercising First Amendment rights, women claiming sexual harassment, anyone who criticizes or counters him; who treats the executive branch, including the Justice Department, like his own fiefdom, and brazenly profits off his office; who tells lies like other people breathe; and who might well have conspired with Vladimir Putin to swing the election his way.
Trump doesn’t even pretend to be the president of all the people. As he repeatedly makes clear in rallies and tweets, he is president of his “base.”
And his demagoguery is by now unconstrained in the White House. Having fired the few “adults” in his Cabinet, Trump is now on the loose (but for a few advisors who reportedly are trying to protect the nation from him).
All this would be bad enough even if the two other branches of government behaved as the framers of the Constitution expected, as checks and balances on a president. But under Republican leadership, they refuse to play this role when it comes to Trump.
House and Senate Republicans have morphed into Trump sycophants and toadies – intimidated, spineless, opportunistic. The few who have dared call him on his outrages aren’t running for reelection.
Some have distanced themselves from a few of his most incendiary tweets or racist rantings, but most are obedient lapdogs on everything else – including Trump’s reluctance to protect the integrity of our election system, his moves to prevent an investigation into Russian meddling, his trade wars, his attacks on NATO and the leaders of other democracies, his swooning over dictators, his cruelty toward asylum-seekers, and, in the Senate, his Supreme Court nominees.
Senate Majority Leader Mitch McConnell has emerged as Trump’s most shameless lackey who puts party above nation and Trump above party. The House leadership is no better. House intelligence chair Devin Nunes is Trump’s chief flunky and apologist, but there are many others.
Now that Kavanaugh is on the Supreme Court, you can forget about the Court constraining Trump, either.
Kavanaugh’s views of presidential power and executive privilege are so expansive he’d likely allow Trump to fire Mueller, shield himself from criminal prosecution, and even pardon himself. Kavanaugh’s Republican brethren on the Court would probably go along.
So how are the constitutional imperative of checks and balances to be salvaged, especially when they’re so urgently needed?
The only remedy is for voters to flip the House or Senate, or ideally both, on November 6th.
The likelihood of this happening is higher now with Kavanaugh on the Court and Trump so manifestly unchecked. Unless, that is, enough voters have become so demoralized and disillusioned they just give up.
If cynicism wins the day, Trump and those who would delight in the demise of American democracy (including, not incidentally, Putin) will get everything they want. They will have broken America.
For the sake of the values we hold dear – and of the institutions of our democracy that our forbearers relied on and our descendants will need – this cannot be allowed.
It is now time to place a firm check on this most unbalanced of presidents, and vote accordingly.
It's interesting how Susan Collins of Maine managed to thread the needle to justify her vote for Kavanaugh. She said there was no corroboration for Blasey Ford's story, but she thinks she was assaulted by someone but not by Kavanaugh. No one is saying what they actually believe which is he really did it but the statute of limitations for the #MeToo movement has run out. Did Kavanaugh assault anyone in the last 10 years? No. In the last 20 years? No. In the last 30 years? No. Evidently he has led an exemplary life for at least 30 years. I think they all believe Blasey Ford's story. It just doesn't matter to most Republican Senators. They'd want Kavanaugh on the court regardless. It didn't in actuality boil down to who they believed. Believing one or the other had nothing to do with it although they would have the public believe that they wouldn't have voted for Kavanaugh if they didn't believe him..
As far as most Senators were concerned, it was a youthful indiscretion. Even a criminal who has served his time supposedly deserves a second chance. Besides a person in the US is innocent until proven guilty. There is a presumption of innocence. Consequences to a person's career or reputation based on unproven accusations is more like the way business is carried out in China than in the US.
It was definitely all about politics, and the fact that they let Blasey Ford testify before Congress was really a dog and pony show certain to drive up media revenues. It looks also like it energized the Republican base for the upcoming vote. It'll be interesting to see how this plays out in the November election. If the Democrats make good gains, all the demonstrations and such will have borne fruit. If not, those protesting Kavanaugh will have been wasting their time and energy. In the final analysis it comes down to the numbers.
Published on Saturday, October 06, 2018 by Common Dreams
"Instead of acting like the minority and like victims, Dems need to go on the offensive and act like a majority! Investigate, interview, and use the power of the media loudly, with courage and fervor!"
Senate Minority Leader Charles Schumer (D-NY) (C) talks to reporters following the weekly Senate Democratic policy luncheon at the U.S. Capitol October 02, 2018 in Washington, DC. (Photo: Chip Somodevilla/Getty Images)
Following the final pronouncements by holdout lawmakers on Friday—namely Republican Susan Collins of Maine and Democrat Joe Manchin of West Virginia—that made it clear the U.S. Senate is almost assured to confirm Brett Kavanaugh to the U.S. Supreme Court in a vote on Saturday, outraged erupted among those who had opposed his nomination and vows to mobilize were issued to make sure that those who voted against the public interest would be held accountable in the upcoming mid-terms or in 2020.
"Instead of their reactive brand of politics, Democrats might consider doing something bold, like publishing the results of an independent investigation into all the sources the FBI neglected to question, & holding an hours long press conference at which those witnesses speak." —political journalist Brianha Gray
But beyond those pronouncements, others noted that the Democrats still have some very real strategic decisions to make about how to proceed in the case of Kavanaugh—a nominee who throughout his confirmation process lashed out with partisan attacks, dodged questions about his past, and may well have perjured himself by lying under oath to the Senate on not one, but numerous occasions.
In addition to the very serious and credible allegations of sexual assault by Dr. Christine Blasey Ford and Debbie Ramirez—neither of which outside observers contend came close to receiving the investigative scrutiny they deserved by a rushed and constrained FBI probe—progressive voices are calling on the Democrats, even if Kavanaugh is confirmed on Saturday, to do everything possible to make sure a proper investigation is conducted and that the American public—given what's at stake—is given the opportunity to understand the full scope of his past behavior, present-day misconduct, and the accusations of perjury before the Senate Judiciary Committee.
As columnist wrote on CNN Saturday morning, "The FBI probe apparently did not find any corroborating evidence into allegations of sexual assault against Judge Brett Kavanaugh because it was never meant to do that. It was not a search for the truth. It was a charade meant to appear as a real investigation, with the purpose of giving Republicans a fig leaf to confirm Kavanaugh to the Supreme Court without paying a political price."
With a thread on Twitter Friday evening, Briahna Gray, the senior politics editor for The Intercept and a contributing editor for Current Affairs magazine, laid out a plan of attack for Democrats that would rely not on hand-wringing over their Kavanaugh defeat, but instead focus on truth-telling and fact-finding that would put the Republicans, especially Collins, on the hook for the sham process they facilitated to ram him through. In the series of tweets, she wrote:
Instead of their reactive brand of politics, Democrats might consider doing something bold, like publishing the results of an independent investigation into all the sources the FBI neglected to question, & holding an hours long press conference at which those witnesses speak.
They've let Collins & the like get away with pretending like Ford's is an isolated claim. They should ask the Princeton theology professor (we know how the right like's credentials) to "corroborate" Ramiriez's claims. And if she's willing, she should give testimony too.
They should have all of the classmates who've been calling into the news shows and writing letters, including the clerks who have withdrawn their support, take the mic: Make visible the testimony that the FBI ignored, & make a spectacle of their mishandling of the investigation.
Even if Kavanaugh is confirmed, Collins should not be able to get away with the claim that it's "more likely than not" that Kavanaugh is innocent of behaviors beneath the dignity of the court. It's obvious to most of us, but it needs to be made more obvious to Maine voters.
Last point: Let's not forget that we're still waiting on these Kavanaugh documents, and Dems will look silly objecting to whatever eventually comes out if they act complacent now.
Those who spotted the advice, thought it was a great idea:
Instead of their reactive brand of politics, Democrats might consider doing something bold, like publishing the results of an independent investigation into all the sources the FBI neglected to question, & holding an hours long press conference at which those witnesses speak.
Responding to Gray's thread, author and climate activist Bill McKibben stated, "this is very good strategic thinking; i hope someone sees it and takes you up on it." He then tagged Democratic Senators Jeff Merkley, Sheldon Whitehouse, and Edward Markey in his tweet.
"If Democrats regain power in either chamber of Congress, they must resolve to reopen the investigations that Republicans refused to conduct and demand the documents that the Trump White House worked to conceal." —Brian Fallon, Demand Justice
In the wake of Friday's announcement by Collins, Brian Fallon, executive director of Demand Justice, said that Kavanaugh "will join the Supreme Court with a cloud over his head, and an asterisk next to his name."
As what might be considered the first truly "illegitimate justice" on the Court, Fallon continued, Kavanaugh's confirmation "will mark a point of no return for the Supreme Court's reputation as the one, apolitical branch" of the U.S. government.
"Make no mistake," he warned: "this confirmation vote will not be the last word on Kavanaugh's fitness to serve on the Supreme Court. Kavanaugh is sure to be the tiebreaking vote in a series of 5-4 decisions that will defy the will of the public, ensuring this fight will rage for years to come. If Democrats regain power in either chamber of Congress, they must resolve to reopen the investigations that Republicans refused to conduct and demand the documents that the Trump White House worked to conceal."
As those Republicans who voted to in his favor, Fallon concluded, "this will be a career-defining decision they will never live down. Many of these Republicans are up in 2020, and our work to hold them accountable will begin immediately."
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It was a foregone conclusion. He said. She said with no corroboration. If the Judge had done these things five years ago and there was corroboration, then he may have been tried and convicted, but the time frame when the event undoubtedly occurred was ancient history. Some women are outraged, but probably not enough to damage the Republican party's fortunes. The Trump base, or the 'silent majority' as Nixon called them, have evidently been 'energized' by the recent proceedings. The upcoming mid term elections will probably tell the story. Were enough independent voters outraged enough to vote for Democrats?
Kavanaugh proclaimed, "I am innocent," and he surely was in terms of the law. Everyone is innocent until proven guilty, and there was no way Kavanaugh was going to be proven guilty. Despite multiple allegations and a furious hue and cry, the brou ha ha was in the final analysis just a media spectacle. It sure raised ratings and gave Judge Kavanaugh, albeit unfortunately for him, a national stage. Now he can get down to the business of screwing leftist women politically and taking away their rights.
It all comes down to the numbers. Are there enough votes to repudiate the Republicans at the polls? The problem with the #MeToo movement is that most of these women are "coming forward" as opposed to "going to the police" at the time the incidents occurred. Maybe that will change from now on. It's one thing to get a Les Moonves removed from his CEOship. It's another to get a bunch of lawyers to convict one of their own own based on the court of public opinion.
Unless there is corroborating evidence, the powers that be are not going to believe someone's story no matter how sincere and convincing. They believed Monica Levinsky because she had DNA evidence that it was Bill Clinton. With Bill Cosby, there was no corroborating evidence, but he is a black man so that wasn't as necessary. The Washington Post reported: "The [Cosby] case lacks physical evidence, so much of the prosecution’s presentation to jurors will rest on her [Andrea Costand's] testimony." Another high tech lynching? However, a jury of someone's peers made the decision. A jury need not decide based on corroborating evidence. Evidently, it was enough that a bunch of women came forward with similar stories about Cosby. And did I mention: he's black.
A jury may well have convicted Judge Kavanaugh although the statute of limitations had obviously run out so no jury could possibly have. True, not as many women came forward as in the Cosby case. Christine Blasey Ford was a credible witness, but the incident took place too long ago and there was not enough corroboration. It was a "youthful indiscretion" as politician Henry Hyde declared when he was caught having committed adultery. He was one of the chief accuser's of Bill Clinton.
While Hyde was spearheading the impeachment of President Clinton in the Monica Lewinsky affair, it was revealed that Hyde himself had conducted an extramarital sexual affair with Cherie Snodgrass who was also married. Hyde admitted to the affair and attributed the relationship as a mere "youthful indiscretion". He was 41 years old and married when the affair occurred. Hyde said the affair ended when Snodgrass' husband confronted Mrs. Hyde. At the time, Snodgrass was also married and had three children.
And so sex is a potent tool in the political arena which is responsible for much hypocrisy. Oh what fools we mortals be. And so Kavanaugh accedes to the bench along with "that Thomas" as Anita Hill called him. Lesson to women: document any physical assaults, rapes or attempted rapes.
Make no mistake: The drama that took place in hearings before the Senate Judiciary Committee on September 27, 2018 was about power: On one side, the power of men who harass or abuse women and get away with it, the power of privileged white men to entrench their power even more on the Supreme Court, the power of men to take away a woman’s right to choose what she does with her body.
On the other side, the power of women with the courage to tell what has happened to them, to demand an end to white male privilege, and to preserve and enlarge their constitutional rights.
Dr. Ford was poised, articulate, clear and convincing. No one who witnessed her testimony and her responses could conclude that she failed to tell the truth. More than that: She radiated self-assured power.
Brett Kavanaugh showed himself to be a vicious partisan – a Trump-like figure who feels entitled to do and say whatever he wants, who suspects leftwing plots against him, who refuses to take responsibility for his actions, who uses emotional bullying and intimidation to get his way.
Kavanaugh may still get on the Supreme Court, but there can no longer be any doubt about his temperament or character, or his politics. A large share of the American public will never trust him to be impartial. Many will never believe his denials of sexual harassment. Most will continue to see him as the privileged, arrogant, self-righteous person he has revealed himself to be.
I hope today’s performance convinces a critical mass of American women to do what must be done November 6 to give themselves a firm and clear voice in the Senate and in the rest of American government – to empower themselves at a time when the President, the majority of Congress, and a potential majority in the Supreme Court intend to disempower them.
Literally, the whole nation was glued to the tube yesterday as Supreme Court nominee Brett Kavanaugh was confronted with his accuser. First of all, if her name was not Dr. Christine Blasey Ford, a college professor, but was instead Jemima Pancakes, a college dropout with $30K in student loan debt, do you think she would even be invited to testify in the hallowed halls of Congress? Well, media spectacles, reality shows are what this nation loves. Kavanaugh said it was a national disgrace. No, the national disgrace is that we have a sexual predator in the White House, an environmental predator as head of the Environmental Protection Agency and warmongering predators as Congressmen elected primarily from red states.
Trump's attitude was what's the big deal, you elected me and I'm a sexual predator. Why not him, too? What did you expect, an altar boy? While the US is bombing innocent women and children in Yemen and starving them to death, the ones the bombs don't kill outright, we are all concerned about a sexual predator on the Supreme Court? Well, that makes two of them including Clarence Thomas. That's legal precedent for you!
Meanwhile, nobody is making a media spectacle out of the fact that the group that took down the twin towers, ISIS, are now our friends in Syria because they are fighting against Bashar Assad who is our enemy. So the enemy of our enemy who was once our enemy too is now our friend because the US government is so fucked up that they can't keep their friends and enemies straight.
Well now everyone is concerned that the Supremes who are increasingly becoming just another bad joke, will overturn Roe vs Wade. Well, if they do it will only affect poor women. If Kavanaugh's daughter got pregnant unexpectedly, he'd just fly her to Europe where abortion is legal. While there she might also tour Paris, Amsterdam and Rome. Poor women would just have to have their babies. Rich Republicans don't want poor women having babies at taxpayer expense anyway. That makes their blood boil so they will be happy to outlaw legal abortion, and, while they're at it, do away with Medicaid altogether. They can't stand the thought of poor people getting anything from the government for free, much less an abortion.
The American people love a good show; they love to be entertained, and that's what yesterday's dog and pony show was all about. A documentary about Yemen or about our trillion dollar defense budget wouldn't have been half as entertaining. Trump is the consummate US President because he entertains us while fulfilling government's most crucial function: lowering taxes.
Yale Law School, from which Brett Kavanaugh got his law degree, issued a statement about him with glowing quotes from professors attesting to his impeccable legal credentials.
Perhaps the Yale Law faculty deemed his credentials impeccable because he graduated from Yale Law School. Then again, Clarence Thomas also graduated from Yale Law School (as, in full disclosure, did I).
The reason Kavanaugh should not be confirmed has nothing to do with his legal credentials. It’s the blatantly partisan process used by Trump and Senate Republicans to put him on the Supreme Court.
The framers of the Constitution understood that Americans would disagree about all manner of things, often passionately.
Which is why they came up with a Constitution that’s largely a process for managing our disagreements, so that the losers in any given dispute feel they’ve been treated fairly. That way, we all feel bound by the results.
I don’t need to point out to you that we have deep disagreements these days. We’re in one of the most bitter, divisive, partisan eras in living memory.
So it’s not enough that a prospective Supreme Court justice have impeccable legal credentials. The person must also be chosen impeccably, so that the public trusts he or she will fairly and impartially interpret the Constitution.
Process matters, now so more than ever.
If Kavanaugh is confirmed, it will be due to a process that has violated all prevailing norms for how someone should be chosen to be a Supreme Court justice.
Let us count the ways.
First, Mitch McConnell, the majority leader of the Senate – who wouldn’t recognize a fair process if it fell on him – refused for eight months even to allow the Senate to vote on Merrick Garland, President Barack Obama’s nominee to the Supreme Court. That itself was unprecedented.
Then last year, on a strict party-line vote, Senate Republicans invoked what had been known as the “nuclear option,” lowering the threshold for ending debate on a Supreme Court nomination to fifty-one votes from sixty, in order to win Senate approval for Trump’s first nominee, Neil Gorsuch.
Now McConnell is rushing the vote on Kavanaugh with almost no opportunity for Democrats to participate.
The Trump administration has asserted executive privilege to shield 100,000 page of Kavanaugh’s White House records from release – an assertion so broad that senators can’t even read behind closed doors documents that might shed light on issues the public might reasonably consider important, such as whether Kavanaugh endorsed the Bush administration’s infamous torture memos.
And rather than rely on the National Archives for documents relating to Kavanaugh’s record, Republicans are having political partisans sift through them - which a National Archives official describes as “something that has never happened before.”
Meanwhile, Trump himself is an unindicted co-conspirator in a government criminal case concerning campaign finance violations in the 2016 election. He is also under government investigation for possibly obstructing justice, and for colluding with a foreign power to intrude in the 2016 election on his behalf.
But Senate Republicans are unwilling to delay a vote on Kavanaugh until these cases are resolved.
Some of the issues at stake in these cases are likely to come before Kavanaugh if he joins the Court, yet Kavanaugh refuses to agree to recuse himself from deciding on them.
Finally, many of the jobs Kavanaugh held over the last quarter century required not scholarly legal credentials but, rather, a willingness to act as legal hatchet-man in some of the most divisive issues the nation faced over those years.
Kavanaugh helped devise the strategy to impeach Bill Clinton, and went on to help George W. Bush wage war in Iraq.
Given all this, can America trust that Kavanaugh will fairly and impartially decide the meaning of the Constitution? Obviously not.
The reason McConnell and Republicans are steamrolling his confirmation, and why Trump nominated him in the first place, is because they know for certain he won’t.
Put aside all the “impeccable credential” rubbish and you find a fiercely partisan conservative who will further tip the court’s balance along partisan lines.
Senate deliberation over him is a charade. Everybody on the inside knows what’s going on here. And almost everyone watching from the sidelines does, too.
All of which is especially damaging to the Supreme Court and to the nation at this intensely fractious point in history.
When a sitting president spews venom daily, and when Congress has become a cauldron of bitter partisanship, American needs a Supreme Court that can be trusted to fairly manage our national disagreements. The Constitution demands no less.
Tragically, Brett Kavanaugh will further divide us. For this reason alone, he shouldn’t be confirmed.
Supreme Court Nominee Brett Kavanaugh testifies during the second day of his Supreme Court confirmation hearing on Capitol Hill September 5, 2018 in Washington, DC. Kavanaugh was nominated by President Donald Trump to fill the vacancy on the court left by retiring Associate Justice Anthony Kennedy. (Photo: Zach Gibson/Getty Images)
Observers say that confirmation of Judge Brett Kavanaugh to become President Trump’s second pick for a lifetime job on the Supreme Court will make the Court more conservative. It is more accurate to say Kavanaugh will make the Court more corporatist.
With Kavanaugh, it is all about siding with corporations over workers, consumers, patients, motorists, the poor, minority voters, and beleaguered communities.
Repeatedly Kavanaugh’s judicial opinions put corporate interests ahead of the common good—backing the powerful against the weak, the vulnerable, and the defenseless.
Apart from his declared views pouring power and immunity into the Presidency (which is why Trump wants him), Kavanaugh could be the most corporate judge in modern American history. Two meticulous reports on his judicial decisions, one by the Alliance for Justice (AFJ) and one by Public Citizen demonstrate that for him it’s all about corporations uber alles.
Kavanaugh has repeatedly ruled against efforts to combat climate change and the regulation of greenhouse gases. He also repeatedly ruled against protections for clean air. He has repeatedly sided with the wealthy and the powerful over all Americans. He has fought consumer protections in the areas of automobile safety, financial services, and a free and open internet. Kavanaugh has also repeatedly ruled against workers, workplace protections and safety regulations.
Do you want him to be on the Supreme Court?
Kavanaugh is a corporate supremacist to a fanatic level of protecting corporate cruelty and greed. Giving him an unaccountable lifetime position on the Court will weaken our democracy and empower the corporate state.
What will he do when cases involve robots harming workers or consumers; corporate algorithms corkscrewing consumers; corporations turning the governments against their citizens; and corporate criminals being bailed out by taxpayers?
Fortunately, Kavanaugh gives us more than a clue from his many judicial decisions and dissents, especially with healthcare cases coming before the Court. Public Citizen’s factually-based report on Judge Kavanaugh’s opinions in split-decision cases provides insight into his judicial philosophy.
He ruled 15 times against worker rights, 2 times for worker rights. On environmental protection, he ruled 11 times for business interests and 2 times for the public’s interest. On consumer and regulatory cases, he ruled 18 times for businesses and 4 times for consumer protection interests. In the area of antitrust or anti-monopoly, he ruled 2 times for the corporations and zero times for market competition.
He seems to love government power when it is arrayed against the people, ruling 7 times for police or human rights abuses versus zero rulings for the victims. But he rules against government agencies when they are protecting the interests of the people over those of corporations.
Even more extreme, he does not like human beings to sue corporations or sue the government. But if you are a corporation, the courthouse doors are always open.
Kavanaugh rules like he is a corporation masquerading as a human. But in his introductory statement to the Senate Judiciary Committee, he wanted us to see him a regular guy, weirdly remembering the row and seat number at two professional sports games his father took him to as a child and listing all the names of his sixth grade daughter’s basketball team.
Shame on Chairman Charles Grassley (R-IA) for severely restricting the voices from civil society allowed to testify before the Judiciary Committee. No wonder Code Pink had to protest from the galleries.
Watch out for a cruel man with a folksy smile. Watch once again the Democratic Senators on the Senate Judiciary Committee minimizing Kavanaugh’s bias for corporations—except for Senator Sheldon Whitehouse (D-RI).
Given the lives, injuries, and sickness at stake; given the dictatorially approved taxpayer-funded corporate welfare and bloated corporate contracts with governments draining the peoples’ necessities, given Kavanaugh’s mindless support for corporate dollars corruptly buying elections, maybe the motto against this awful nomination should be “Kavana-ugh!”
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The man who gave us Citizens United and Bush vs Gore is gone from the face of the earth. I for one do not mourn his passing. His decisions have not only contributed to the destruction of the US, but major portions of the world as well, and he was set to destroy the world consensus on climate change which would have destroyed the entire planet.
It was Scalia who said that unlimited corporate campaign spending is something “we should celebrate rather than condemn,” (Citizens United), that vote-counting should be halted for causing “irreparable harm” to the candidate who might lose as a result (Bush v. Gore), that protecting the right to vote is an odious example of “racial entitlements” (commentsrelated to Shelby County v. Holder), and that allowing local anti-discrimination laws to protect gays and lesbians amounts to “special treatment of homosexuals” (Romer v. Evans), the 5-4 decision in District of Columbia v. Heller, which held for the first time that the Second Amendment protected an individual's right to bear arms just to name a few of the highlights of his ignominious career.
The Supreme Court was all set to doom President Obama's climate deal he made in Paris. That would have meant that the deal established in COP21 would have fallen apart in the rest of the world as well. If the biggest polluter (the US) couldn't uphold its end of the deal, why should any other country?
Scalia and the 4 Conservatives on the Court Decided a Presidential Election
They appointed George W Bush President. This was the most disastrous decision in US history both from the point of view of Bush's Iraq War which destroyed the lives and property of millions of men, women and children and the 2008 financial crisis which almost brought down the economy of the entire world.
In the 2000 Presidential election they chose Bush over Gore even though, if the election had been allowed to proceed, Gore would have won. Not one of the Court’s four moderates agreed with Scalia that the winner of the 2000 presidential election should effectively be chosen by the five most conservative members of the Supreme Court of the United States. If the election had been allowed to proceed, world history would have been radically changed for the better. And the world would be better off in its ability to fight climate change about which Gore was a proponent and an expert. Scalia and his fellow conservatives were all set to destroy Obama's initiative at COP21, the recent Paris summit.
Scalia's decision to railroad Bush into the Presidency was made according to him "for the good of the people." But was it? Look what we got. A President who ignored warnings of Bin Laden Determined to Strike in US in his presidential daily briefings followed shortly by 9/11. Then Bush lied the US into a war in Iraq presumably on the grounds of the existence of weapons of mass destruction that didn't actually exist. The deaths of hundreds of thousands of men, women and children including both Americans and Iraqis was the consequence of that.
The power vacuum created by the overthrow of Saddam in Iraq was filled by ISIS, the largest terrorist organization the world has ever known. Their attempts to take over real estate in Syria has directly resulted in the Syrian refugee crisis that has overwhelmed Europe as well as the destruction of countless lives and property in Syria and elsewhere in the Middle East.
The next horror that Bush presided over was the financial crisis of 2008 which almost inundated the entire world economy, resulted in driving a greater wedge between the 1% and the 99% and increased the inequality gap. The banks got bailed out, and the people got stuck with the bills both as taxpayers and mortgagees. Bush presided over not only the collapse and utter destruction of the middle east but also the collapse of the world economy and the 9/11 debacle.
Between the destruction of lives and real estate in the middle east, the destruction of the world economy and not keeping the US safe from the 9/11 attack (by the way Trump is right about that), Scalia's decision to install George W Bush in the American Presidency was one of the worst in American and world history.
Scalia's death has given the world a reprieve from his terrible decisions among the worst of which was the appointment and installation of George W Bush as President.
Scalia and Supreme Court Conservatives Were Set to Doom Obama's Climate Change Initiative
American leadership on the Paris COP21 deal was and still is paramount and vital. Without it the whole accord would have fallen like a house built on sand in an earthquake. President Obama planned to implement the American part of the deal through an executive order since the Republican Congress has been against everything he stands for from Day 1 and has done everything within its power to humiliate, emasculate, belittle and demean him and turn his Presidency into a complete and utter shambles. Through it all President Obama has acted like a complete and respectful gentleman despite the enormous pressure put upon him. Scalia and his conservatives on the totally politicized and ideologically based Supreme Court decided to put a halt to Obama's climate change plan until they took their good time in getting around to considering and probably defeating it.
Initially, Obama was optimistic about the results of COP21:
He said, "The Paris agreement establishes the enduring framework the world needs to solve the climate crisis. It creates the mechanism, the architecture, for us to continually tackle this problem in an effective way."
"I believe this moment can be a turning point for the world," Obama said, calling the agreement "the best chance we have to save the one planet that we've got."
The accord achieved one major goal. It limits average global warming to 2 degrees Celsius (3.6 degrees Fahrenheit) above pre-industrial temperatures and strives for a limit of 1.5 degrees Celsius (2.7 degrees Fahrenheit) if possible.
What Exactly Did Obama Commit the US to in COP21?
President Obama's Clean Power Plan, an Environmental Protection Agency rule designed to cut carbon emissions from power plants, is the centerpiece of Obama’s climate agenda and a major part of the US pledge to reduce emissions as part of the Paris deal.
Power plants will have to cut their carbon dioxide emissions by 32% compared to 2005 levels by 2030. He also committed the US to cutting its emissions from all sources of pollution, including cars and trucks by 26 to 28 percent by 2030, compared to 2005.
Then Republicans and a bunch of southern states set out to doom Obama's climate deal and with it the chances to curtail global warming for the rest of the world. From the New York Times:
Hours after President Obama pledged Tuesday in Paris that the United States would be in the vanguard of nations seeking a global response to climate change, Congress approved two measures aimed at undercutting him.
In a provocative message to more than 100 leaders that the American president does not have the full support of his government on climate policy, the House passed resolutions, already approved by the Senate, to scuttle Environmental Protection Agency rules that would significantly cut heat-trapping carbon emissions from existing and future coal-fired power plants.
The House votes — by 242 to 180 and 235 to 188, mostly along party lines — expanded to a global level the already profound gulf between Mr. Obama and the Republican-controlled Congress on domestic issues, demonstrating that the United States was hardly unified on the issue of climate change even as the president and other leaders sought to project solidarity.
When the EPA published the rule in October 2015, it was met with a wave of lawsuits from states, energy companies and interest groups looking to stop it. Judges declined to issue a temporary hold on the rule before the Paris conference, but if the courts stop it in 2016, Republicans say, that would be a sign to the rest of the world that the U.S. can’t meet its climate commitments.
On February 9, 2016, the Supreme Court stayed implementation of the Clean Power Plan pending judicial review. It was assumed that whenever the Supremes got around to reviewing it, it would be rejected by them because of the 5-4 Republican majority on the Court. Now because of Scalia's death, there is not a Republican majority on the Court - there is a 4-4 stand-off - and it is likely that Obama's Clean Power Act will prevail.
Scalia was an unvarnished, intemperate and intolerant ideologue. He was intent on undoing every vestige of progressive legislation the Court had approved from time immemorial. His henchmen were the Republican Senate. Together they did their best to thwart Obama at every turn and turn his Presidency into a mish mash of failures. They worked in conjunction with each other to disparage, denigrate and belittle the President. Their agendas were the same as the Koch brothers and other extreme right wingers.
Scalia used his position on the Supreme Court to attempt to destroy a Presidency and everything it stood for. All I can say is Sayonara Scalia, and maybe now some sanity can be restored to the Supreme Court whether by President Obama or the next Democratic President of the United States. It's worth a huge fight to get the right man or woman on this totally politicized Supreme Court. Let's face it; it's more a matter of their progressive or conservative credentials than it is of the brilliance of their legal intellect.
Today a majority of the Court upheld the constitutionality of the Affordable Care Act, otherwise known as Obamacare in recognition of its importance as a key initiative of the Obama administration. The big surprise, for many, was the vote by the Chief Justice of the Court, John Roberts, to join with the Court’s four liberals.
Roberts’ decision is not without precedent. Seventy-five years ago, another Justice Roberts – no relation to the current Chief Justice – made a similar switch. Justice Owen Roberts had voted with the Court’s conservative majority in a host of 5-4 decisions invalidating New Deal legislation, but in March of 1937 he suddenly switched sides and began joining with the Court’s four liberals. In popular lore, Roberts’ switch saved the Court – not only from Franklin D. Roosevelt’s threat to pack it with justices more amenable to the New Deal but, more importantly, from the public’s increasing perception of the Court as a partisan, political branch of government.
Chief Justice John Roberts isn’t related to his namesake but the current Roberts’ move today marks a close parallel. By joining with the Court’s four liberals who have been in the minority in many important cases – including the 2010 decision, Citizen’s United vs. Federal Election Commission, which struck down constraints on corporate political spending as being in violation of the Constitution’s First Amendment guaranteeing freedom of speech – the current Justice Roberts may have, like his earlier namesake, saved the Court from a growing reputation for political partisanship.
As Alexander Hamilton pointed out when the Constitution was being written, the Supreme Court is the “least dangerous branch” of government because it has neither the purse (it can’t enforce its rulings by threatening to withhold public money) nor the sword (it has no police or military to back up its decisions). It has only the trust and confidence of average citizens. If it is viewed as politically partisan, that trust is in jeopardy. As Chief Justice, Roberts has a particular responsibility to maintain and enhance that trust.
Nothing else explains John Roberts’ switch – certainly not the convoluted constitutional logic he used to arrive at his decision. On the most critical issue in the case – whether the so-called “individual mandate” requiring almost all Americans to purchase health insurance was a constitutionally-permissible extension of federal power under the Commerce Clause of the Constitution – Roberts agreed with his conservative brethren that it was not.
Roberts nonetheless upheld the law because, he reasoned, the penalty to be collected by the government for non-compliance with the law is the equivalent of a tax – and the federal government has the power to tax. By this bizarre logic, the federal government can pass all sorts of unconstitutional laws – requiring people to sell themselves into slavery, for example – as long as the penalty for failing to do so is considered to be a tax.
Regardless of the fragility of Roberts’ logic, the Court’s majority has given a huge victory to the Obama administration and, arguably, the American people. The Affordable Care Act is still flawed – it doesn’t do nearly enough to control increases in healthcare costs that already constitute 18 percent of America’s Gross Domestic Product, and will soar even further as the baby boomers age – but it is a milestone. And like many other pieces of important legislation before it – Social Security, Medicare, Civil Rights and Voting Rights – it will be improved upon. Every Democratic president since Franklin D. Roosevelt has sought universal health care, to no avail.
But over the next four months the Act will be a political football. Mitt Romney, the Republican presidential candidate, has vowed to repeal the law as soon as he is elected (an odd promise in that no president can change or repeal a law without a majority of the House of Representatives and sixty Senators). Romney reiterated that vow this morning, after the Supreme Court announced its decision. His campaign, and so-called independent groups that have been collecting tens of millions of dollars from Romney supporters (and Obama haters), have already launched advertising campaigns condemning the Act.
Unfortunately for President Obama – and for Chief Justice Roberts, to the extent his aim in joining with the Court’s four liberals was to reduce the public appearance of the Court’s political partisanship – the four conservatives on the Court, all appointed by Republican presidents, were fiercely united in their view that the entire Act is unconstitutional. Their view will surely become part of the Romney campaign
Predictions are always hazardous when it comes to the economy, the weather, and the Supreme Court. I won’t get near the first two right now, but I’ll hazard a guess on what the Court is likely to decide tomorrow: It will uphold the constitutionality of the Affordable Care Act (Obamacare) by a vote of 6 to 3.
Three reasons for my confidence:
First, Chief Justice John Roberts is — or should be — concerned about the steadily-declining standing of the Court in the public’s mind, along with the growing perception that the justices decide according to partisan politics rather than according to legal principle. The 5-4 decision in Citizen’s United, for example, looked to all the world like a political rather than a legal outcome, with all five Republican appointees finding that restrictions on independent corporate expenditures violate the First Amendment, and all four Democratic appointees finding that such restrictions are reasonably necessary to avoid corruption or the appearance of corruption. Or consider the Court’s notorious decision in Bush v. Gore.
The Supreme Court can’t afford to lose public trust. It has no ability to impose its will on the other two branches of government: As Alexander Hamilton once noted, the Court has neither the purse (it can’t threaten to withhold funding from the other branches) or the sword (it can’t threaten police or military action). It has only the public’s trust in the Court’s own integrity and the logic of its decisions — both of which the public is now doubting, according to polls. As Chief Justice, Roberts has a particular responsibility to regain the public’s trust. Another 5-4 decision overturning a piece of legislation as important as Obamacare would further erode that trust.
It doesn’t matter that a significant portion of the public may not like Obamacare. The issue here is the role and institutional integrity of the Supreme Court, not the popularity of a particular piece of legislation. Indeed, what better way to show the Court’s impartiality than to affirm the constitutionality of legislation that may be unpopular but is within the authority of the other two branches to enact?
Second, Roberts can draw on a decision by a Republican-appointed and highly-respected conservative jurist, Judge Laurence Silberman, who found Obamacare to be constitutional when the issue came to the U.S. Court of Appeals for the D.C. Circuit. The judge’s logic was lucid and impeccable — so much so that Roberts will try to lure Justice Anthony Kennedy with it, to join Roberts and the four liberal justices, so that rather than another 5-4 split (this time on the side of the Democrats), the vote will be 6 to 3.
Third and finally, Roberts (and Kennedy) can find adequate Supreme Court precedent for the view that the Commerce Clause of the Constitution gives Congress and the President the power to regulate health care — given that heath-care coverage (or lack of coverage) in one state so obviously affects other states; that the market for health insurance is already national in many respects; and that other national laws governing insurance (Social Security and Medicare, for example) require virtually everyone to pay (in these cases, through mandatory contributions to the Social Security and Medicare trust funds).
Okay, so I’ve stuck my neck out. We’ll find out tomorrow how far.
