The incoming House Judiciary Committee majority will have to sort its way through a crushing load of weighty issues that were neglected by the outgoing majority. The docket will be filled by oversight of the Trump administration, including – for starters — investigation of its blatant violations of the Emoluments Clause; its multiple assaults on the Department of Justice and the rule of law, including the appointment of an unqualified acting Attorney General; and its efforts to obstruct FBI investigations. At some point, perhaps even before the next large Mueller shoe drops, it will begin the constitutionally necessary and nearly all-consuming march toward impeachment. But, its focus on the executive branch should not drown out equally crucial efforts to rescue the Supreme Court from partisan corruption.
Immediately before Thanksgiving, President Trump issued one of his embarrassingly ill-informed and predictable blasts at the judiciary. That was not news until Chief Justice John Roberts responded unexpectedly after holding his tongue through Trump’s repeated attacks on individual federal judges and courts. Trump’s statement reflected astonishing ignorance about the operation of the judiciary. Roberts, who, unlike Trump, surely knows what he is doing, issued a misleading and self-serving deflection.
Trump launched the brouhaha by denouncing Judge Tigar of the Northern District of California, who blocked Trump’s order making asylum available only to refugees who present themselves at an official port of entry. Trump denounced Tigar as an “Obama judge” and launched into a rambling denunciation of the Ninth Circuit. It’s unclear whether he understood that Tigar is a district court judge and does not sit on the Ninth Circuit. Trump announced that he was “going to put in a major complaint because you cannot win — if you’re us — a case in the 9th Circuit and I think it’s a disgrace. This was an Obama judge. And I’ll tell you what, it’s not going to happen like this anymore.” Major complaint? Where? To whom? Does he think the federal judiciary has a complaint bureau? If only it did because I’d like to lodge a few complaints myself. Shelby County, Citizens United, Janus, Parents Involved. The list goes on.
The American people will have the opportunity to vote in less than two weeks in midterm elections that may prove the most consequential in decades. Unfortunately, hundreds of thousands of qualified voters will face barriers established by Republican state officials, and millions more will have the impact of their votes diluted by partisan gerrymandering. The effect of all of this will be exacerbated by the distorting flow of hundreds of millions of dollars of dark money into elections. Republicans stand to benefit. In each instance, their advantage was enabled by the Republican-appointed majority of the Supreme Court.
For decades, Republicans have operated on the principle that they prosper when fewer people vote. The Republican base has become older, whiter, and smaller as the overall population has become more diverse. The effects of demography have been exacerbated by the growing unpopularity of Republican policy positions. Republicans’ ace-in-the hole has been that older and whiter voters generally turn out in higher percentages than younger, poorer, and more diverse voters. That effect is exaggerated in midterm elections. Without a presidential contest, interest is low and Republicans over-perform, as they did in taking the House in 2010 and the Senate in 2014.
The Kavanaugh confirmation debacle has justifiably left people angry. We must continue to process the allegations against Kavanaugh, the limitations imposed on the FBI investigation, and the suppression of documents by the White House and Senate Republicans. But it is also time to get serious about reforming the Supreme Court.
The president and Republicans in the Senate have installed a radically conservative justice who was credibly accused of sexual assault and lied to the Judiciary Committee about matters ranging from his activities in the Bush White House to the meaning of his high school yearbook. They pressed ahead with a supremely flawed candidate to complete the right-wing takeover of the Court that has been a central Republican political goal for at least fifty years.
The Court is now indisputably a political institution in which Republican justices will move the law inexorably to the right in furtherance of the Republican agenda. By further weakening public confidence in the Court’s independence and neutrality, Republicans have damaged its legitimacy. Congress must begin to repair the Court.
The accusation by Dr. Christine Blasey Ford that a drunken 17-year old Brett Kavanaugh attempted to rape her has imperiled Kavanaugh’s Supreme Court nomination. Here are eight reasons why Judge Kavanaugh’s nomination may fail.
1. Dr. Blasey Ford’s credibility is virtually unassailable. She was reluctant to come forward. She had decided to remain anonymous and let the nomination proceed until reporters learned her identity and forced her to take charge of her story. She knew that telling her story would upend her life in unpleasant and permanent ways, as demonstrated by Anita Hill’s experience. There was simply no reason for her to come forward – particularly in this highly charged context — to tell a lie.
2. Judge Kavanaugh’s credibility has declined through his confirmation performance. He began the process by telling this bald-faced lie in the Rose Garden when Trump announced his nomination: “No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination.” In reality, Trump outsourced the selection process to the Federalist Society and Heritage Foundation and engaged in the process less than any modern president. Kavanaugh’s candor suffered in his hearing from misleading statements about his involvement in the confirmations of Bush judicial nominees, Bush’s warrantless surveillance program and the detainee torture program. He stated falsely that he did not receive confidential memos stolen from the computer files of Democratic senators while working on judicial confirmations in the White House.