Waving magic wands: the myth of Democratic power

Pressing his ears against the commentariat’s din, Matthew Yglesias comes to obvious conclusions: only a Democratic majority in the Senate could have stopped the Brett Kavanaugh confirmation. Conversely, Mitch McConnell’s legislative genius, such as it is, consisted in whipping a bare majority. Even in those halcyon days of the sixty-vote filibuster over which Harry Reid presided, Barack Obama got nominees Sonia Sotomayor and Elena Kagan confirmed not because a spirit of benign comity persuaded Susan Collins and Lindsey Graham to vote for them: the Senate confirmed them because he still enjoyed a fifty-plus Democratic majority that could’ve gummed up the works if it wanted to. Reid and Obama didn’t need Collins and Graham. 

Seeing villains as misunderstood victims

“There was, in this performance, not even a hint of the sagacity one expects from a potential Supreme Court Justice,” Doreen St. Félix writes in The New Yorker.

More than presenting a convincing rebuttal to Ford’s extremely credible account, Kavanaugh—and Hatch, and Lindsey Graham—seemed to be exterminating, live, for an American audience, the faint notion that a massively successful white man could have his birthright questioned or his character held to the most basic type of scrutiny. In the course of Kavanaugh’s hearing, Mitchell basically disappeared. Republican senators apologized to the judge, incessantly, for what he had suffered. There was talk of his reputation being torpedoed and his life being destroyed. This is the nature of the conspiracy against white male power—the forces threatening it will always somehow be thwarted at the last minute.

Many of us who are writers embrace complexity; we impose subtlety on men and women who repel it. Listening to Kavanaugh sound the horn of the forever maudlin when mentioning his kids, mom (a judge), and the number of female clerks whom he’s hired, I thought these things could be true without being exculpatory. Kavanaugh may have assaulted a woman as a teen and years later pick up the newspaper for the old lady who lives across the street.

Then, after Lindsey Graham trampled on the vineyards where the grapes of wrath were stored, I changed my mind: I don’t want to think of Kavanaugh and his conservative enablers as good men. To think they are would ascribe to them a complexity they don’t deserve. Abigail Nussbaum:

It should go without saying, but: a good guy doesn’t lie under oath. A good guy doesn’t brazenly spread falsehoods that he knows everyone can see through, in the arrogant belief that his privilege will protect him from any consequences or loss of public regard. A good guy doesn’t rant and rave about taking revenge on his supposed enemies while interviewing for a job synonymous with impartiality and open-mindedness. And, oh yeah, a good guy would admit to his wrongdoing, apologize for it, and withdraw his name from consideration for the highest court in the land, in recognition of the fact that he doesn’t deserve to be there. If Black believes Ford, as he claims to, then there’s simply no way to categorize Kavanaugh as a good guy, no matter how many carpools he drives or how nice he is to his poker buddies.

…People who blatantly don’t care about the safety and wellbeing of women are bad. But so are people who are so deeply invested in constructing a narrative of redemption for abusers and bad actors (privileged ones, obviously) that they irreparably skew the conversation in that direction, and train the rest of us to see villains as misunderstood victims.

Ford kept her composure as she explained why her life was ruined; Kavanaugh lost his when he did. Every GOP senator apologized to Kavanaugh for the ruin his life has become; every one of them hid behind a female sex crimes prosecutor and said nothing to Ford.

‘Hypocrisy is the breast milk of conservatism’

The lawyer who pressed the Starr investigation to ask ever more prurient questions of Bill Clinton grows “frustrated” at the line of questions with which GOP allies are prepping him.

An array of White House aides, playing the role of various senators on the Judiciary Committee, quizzed Kavanaugh last week about his sex life and other personal matters in an attempt to prepare him for a hearing that would inevitably be uncomfortable.

In his answers during the practice runs, aides said, Kavanaugh condemned sexual assault and carefully avoided seeming to discredit Christine Blasey Ford, a psychology professor in Northern California who has accused the nominee of pinning her to a bed, groping her and putting his hand over her mouth to stifle her screams as he tried to take off her clothes at a drunken high school party in the early 1980s.

But Kavanaugh grew frustrated when it came to questions that dug into his private life, particularly his drinking habits and his sexual proclivities, according to three people familiar with the preparations, who requested anonymity to discuss internal deliberations. He declined to answer some questions altogether, saying they were too personal, these people said.

“I’m not going to answer that,” Kavanaugh said at one point according to a senior White House official, who said that the questions were designed to go over the line and that he struck the right tone.

Strange stirrings

I don’t read Josh Marshall much these days because of his histrionic tendencies and his way of signing off posts with the equivalent of a hastily scrawled, “I don’t know, we’ll see.” But I agree with his conclusion of how the Christine Blasey Ford’s accusations won’t shake the Senate GOP at all:

The chance of letting that opportunity slip through their fingers is unthinkable.

The White House and Senate Republicans are likely thinking that regardless of the credibility of the claim or what they think of it, Kavanaugh absolutely positively has to be confirmed. Because it’s not just about Kavanaugh. If he’s not confirmed it opens up the possibility that they won’t get the chance to replace Justice Kennedy and secure the fifth vote on the Court at all. Given that the Garland seat was stolen, should Democrats reclaim the chamber, I don’t think they should approve any nominee from President Trump. That’s unlikely. But Democrats won’t give the President the opportunity to nominate a maximalist right wing judge the way Republicans are now. That’s a big difference.

Ever since Harry Blackmun wrote the majority opinion for Roe v. Wade, giving the New Right the means by which to command a dormant voting bloc (i.e. evangelicals), modern conservatism has spent millions creating political action committees and weirdly named Pinterest groups; modern conservatism’s reason for existing has been to deliver a Supreme Court majority sufficient enough to send abortion back to states where it is legal, condemning millions of poor women to coat hanger procedures because they lack the wherewithal to travel while conservative wives themselves pay for clandestine abortions. Despite Jeff Flake’s protestations and Susan Collins’ finely calibrated mewlings of ambiguity, I can’t imagine more than forty years of effort yielding, not when gutting the Fourteenth Amendment

‘This is why women don’t come forward’

Strange stirrings in the Senate about the Brett Kavanaugh. Although the odds are he still joins serial harasser Clarence Thomas with the other Supremes, a new accusation of sexual misconduct would suspend hearings if we lived in a two-party system where one party was less obsessed with nominating justices who want to (a) return abortion “to the state level” (b) return abortion to the realm of the rich and well-connected, many of whom are Republican and live in states set to declare abortion illegal.

Anyway, Dahlia Lithwick is not optimistic:

The real tragedy is that we do not need this woman’s story to understand who the current Supreme Court nominee is. Because here is what we do know about Judge Kavanaugh: We know that he clerked for and had a yearslong close relationship with a serial abuser of women and claims he knew nothing about it. He claims he doesn’t recall being on a hypersexualized and misogynistic email list and claims he didn’t bother to search to determine whether he was. He claims that when the serial abuser of women for whom he clerked was revealed to be a serial abuser of women, he believed the victims and yet called the abuser, because he was worried about the abuser’s mental health. Worrying more about the accused judge than the accusers one claims to believe is the system protecting the system. This is why women don’t come forward.

The loathsome Orrin Hatch, twenty-seven years later, still sits on the Judiciary Committee — what a delight! What Dianne Feinstein gained by holding on to the initial letter for a couple of months I’m not sure — timing and surprise?

The Supreme Court: often “unwilling to shield the powerless from the mob”

American history is disgracefully taught when taught at all, so knowing that Supreme Court jurisprudence isn’t part of an undergraduate curriculum, let alone AP high school curriculum, is no surprise.

‘In class after class, I stood with Rehnquist’

The drip drip drip begins:

Judge Brett M. Kavanaugh, President Trump’s Supreme Court nominee, gave a revealing speech last fall in which he lauded former Chief Justice William H. Rehnquist for having dissented in Roe vs. Wade and for rejecting the notion of “a wall of separation between church and state.”

He also praised the late chief justice’s unsuccessful effort to throw out the so-called “exclusionary rule,” which forbids police from using illegally obtained evidence.

All three of areas of law — abortion, religion and police searches — are likely to be in flux if Kavanaugh is confirmed and joins the high court this fall.

Kavanaugh’s comments are significant because they were in a speech, not a court opinion in which he was bound by precedent, said David S. Cohen, a law professor at Drexel University in Philadelphia.

But it’ll go back to the States! And what about France!

Dismissing Roe myths

The most common arguments I endure from opponents of Roe v. Wade concern its reputation as a feebly written decision (“Even Ruth Bader Ginsberg said so!”) and as an unwarranted federal protection of a matter best left to the states. Scott Lemieux swats aside these arguments. Few felicities of judicial language have been the subject of as much mockery as FDR appointee William O. Douglas’ phrase in his concurrence in 1967’s landmark Griswold v. Connecticut, in which the Court ruled that bans on contraception violated the right to marital privacy: “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

Erratic and downright slipshod, the latter in his last decade, Douglas was one of the last justices to write his own opinions, which like Oliver Wendell Holmes bent toward the brief and aphoristic; he wanted his opinions to be understood by the average person. No one quibbled with his intelligence or ability. Nor his ambition (Roosevelt goosed him into thinking he’d be president one day).

Lemieux:

Opponents of Roe writing for general audiences routinely invoke the “penumbras” phrase, from Justice William O. Douglas’s opinion striking down a ban on the use or distribution of contraception in Griswold v. Connecticut, as if doing so self-evidently renders the opinion absurd. Douglas had used that phrase to defend the idea that the Constitution includes an implicit right to privacy, in at least some matters of marriage and family, and the Roe majority cited it to extend that idea to the realm of abortion.

But Justice Douglas’s observation that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” describes a perfectly banal concept: The enumeration of rights, individually or collectively, implies the existence of other rights. As Douglas himself pointed out, in Griswold, the Supreme Court has enforced a “right of association” although that phrase is not found in the Constitution, because guarantees of the right to free speech and to petition the government would mean little without the right to form political associations.

Douglas became the longest serving Supreme Court justice in history. His replacement? John Paul Stevens, who on his 2010 retirement took second place.

As for the federalism question, the stakes are grimmer:

As previously discussed, Congress has passed, and the Supreme Court has upheld, a nationwide ban of what anti-abortion groups have labeled “partial-birth abortions.” To find the last time the House of Representatives passed an abortion regulation, you would have to go all the way back to … this January, when it passed a bill that would require doctors to provide medical care for a fetus born alive during an abortion procedure.

And last year, the House passed a bill that would ban abortions after 20 weeks in every state in the union. So far, these bills have died in the Senate. But since the Republican Party is becoming more and more hostile to abortion rights, abortion would remain a national issue. Should the filibuster be eliminated or substantially watered down, a Republican government with slightly larger Senate majorities than it has now would be able to pass national abortion regulations.

The other myths that Lemieux deflates include the purported ease with which American can get abortions as opposed to the French, Roe‘s rescinding of any state regulation, and the strength of public opinion. It’s the kind of article I’d share with friends or print to stick on the refrigerator door.

The nonsense of originalism

I’m no lawyer but have always been interested in the Court as an institution: its history, personalities, decisions. I often get impatient with liberals when they decry “judicial activism” or conservatives when they regard a political document written over two centuries ago as inviolate. Isn’t it funny how originalism produces the most conservative results?

Behold, Justice Brett Kavanaugh

Thanks to VOX’s Dylan Matthews for citing this passage in Ken Gormley’s 2010 The Death of American Virtue: Clinton vs. Starr, whose lurid title masks an otherwise exhausting account of the Hunting of Bill Clinton. I bought the book at the turn of the decade, my first acquaintance with such delicious characters as James Conway, husband of Kellyanne, and a Federalist Society favorite named Brett Kavanaugh, whom Dick Durbin once called the Zelig or Forrest Gump of American judicial politics for showing up at the right place and time for conservative crisis points:

In a memo to “Judge Starr” (with a copy to “All Attorneys”), dated just two days before the grand jury showdown, Kavanaugh disclosed a stark division within [the Office of the Independent Counsel] over how to handle this slippery president. He wrote:

After reflecting this evening, I am strongly opposed to giving the President any “break” … unless before his questioning on Monday, he either i) resigns or ii) confesses perjury and issues a public apology to you. I have tried hard to bend over backwards and to be fair to him. … In the end, I am convinced that there really are [no reasonable defenses]. The idea of going easy on him at the questioning is thus abhorrent to me…

[T]he President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into a shambles — callous and disgusting behavior that has somehow gotten lost in the shuffle. He has committed perjury (at least) in the [Paula] Jones case. … He has tried to disgrace [Ken Starr] and this Office with a sustained propaganda campaign that would make Nixon blush.

Kavanaugh listed ten sample questions, however explicit and unsavory, that he believed Starr and his questioners should ask. They included the following:

…If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying?

If Monica Lewinsky says that on several occasions you had her give [you] oral sex, made her stop, and then ejaculated into the sink in the bathroom off the Oval Office, would she be lying?

If Monica Lewinsky says that you masturbated into a trashcan in your secretary’s office, would she [be] lying?

Although he objected to the prurience of the final version of the Starr Report, few conservatives will find anything that would give them pause. The Federalist Society knows its job. Besides, Zombie Ed Meese sat in the front row tonight when Donald J. Trump introduced Kavanaugh. If he’s good enough for Ronald Reagan’s legal bodyguard/conflict of interest expert, then he’s good enough for Mitch McConnell.

‘Say hello to your boy’

Distrusted by conservatives, mocked by the late Antonin Scalia for encasing helium gas instead of writing sturdy opinions, Anthony Kennedy was a unique figure on the bench, and like self-constructed so-called moderates like Susan Collins and Joe Manchin he encouraged supplicants, including, as the New York Times reports, the current occupier of the Oval Office:

Looks like I picked the wrong day to quit readin’ Derek Walcott

With the retirement of Anthony Kennedy the Supreme Court becomes the first conservative-majority one since the early Hughes if not Taft eras. Charles Evans Hughes at least had mild Progressive roots that gave moral strength to his canny political instincts (he and Louis Brandeis torched FDR’s court-packing scheme from the Court’s side); John Roberts was incubated in the Reagan administration, which means that besides a fealty to states rights and an executive branch untrammeled in national security matters Roberts believes, like Reagan and Mike Deaver did, in the appearance of things. To believe in the Supreme Court As An Institution requires preserving epochal decisions as Potemkin villages while a host of narrow rulings erodes their core and reach.

A Trump administration protected by a supine Congress and a cooperative SCOTUS has accelerated the atomizing of the Union. Citizens in liberal-leaning states can depend on their local elected officials and governors to preserve their essential liberties and everyday matters like access to health care and collective bargaining. Elected officials in conservative ones let their citizens die. Thanks to the latest, ah, jurisprudential directions, we’re reverting to a miscellany of states reminiscent of the Progressive or pre-Civil War era. Income inequality exacerbates this sense of every-man-for-himself.

I’ve seen a number of proposals floating around this morning about how to handle a Senate vote on Kennedy’s replacement. Here’s one:

Earlier this month, University of Miami political scientist Gregory Koger, a specialist in filibustering and legislative obstructionism, explained on Vox.com that, according to Article 1, Section 5 of the U.S. Constitution, “a majority … shall constitute a quorum to do business” in the Senate — meaning that Democrats can basically shut the place down by refusing to vote on anything.

With only the barest 51-vote majority — and one of their own, Arizona Sen. John McCain, on extended leave in Arizona as he grapples with what is likely to be terminal brain cancer — Republicans would have difficultly mustering a quorum without at least some Democratic help. “In the month of June, there have been an average of 1.8 Republican absences across 18 roll call votes,” Koger wrote, “so even if McCain returned to the Senate, the majority would struggle to consistently provide a floor majority.” If McCain doesn’t return, and all 49 Democrats refuse to participate, the 50 Republican senators left in Washington would fall one short of a quorum. (The Senate precedents on quorums do not mention whether Vice President Mike Pence could contribute a 51st vote.)

In that case, “the Senate can do nothing,” Koger concluded. “No bill can pass, no amendment can be decided on, no nominations can get approved.” The Senate would screech to a halt for lack of a quorum — and Democrats could conceivably delay a confirmation vote until a new Senate, perhaps with a narrow Democratic majority, is seated next January.

I’m unpersuaded. Can you imagine Mitch McConnell and the GOP senators taking credit for being the responsible party, the party that Wants To Get Things Done?

Meanwhile Alex Pareene, taking nineteenth century precedent as his lode star, wonders why the Court couldn’t conduct its business with eight justices:

And if there is no need for a ninth member, and if President Trump is not qualified to appoint one anyway, the way forward is clear: Deny quorum until everyone accepts the eight justice status quo. Senate moderates in both parties, including pro-choice Republicans Susan Collins and Lisa Murkowski, should be thrilled with an evenly balanced Supreme Court, with the four conservatives and four liberals being forced to find common ground, and persuade one another, instead of deciding things on nakedly partisan grounds. Anthony Kennedy has given centrists, and all who regret the incivility of the current moment, a gift, and it would be irresponsible to waste it by replacing him.

I have friends who are friends with Pareene, and I know him well enough to see the tongue in cheek (hell, many commenters took to heart his remarks about the moderateness of Susan Collins, Lisa Murkowski, and John McCain).

Back to calling Bill Nelson and reading Derek Walcott on my lunch break