How It Is and How It Got This Way (27 Days)

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Most of us tend to give people the benefit of the doubt. We expect the average person to behave properly. Not perfectly, but generally to follow the rules of society. To help those in distress, to keep promises, to tell the truth. That’s why we’re willing to ask people for help instead of fearing they’ll take advantage of us. It’s why we take promises seriously. It’s why we pay attention to what other people say.

Then something like the Kavanaugh nomination comes along. Even after we’ve been exposed to dirty politics repeatedly, we still find it hard to believe that people — such as members of the Senate — who claim to value truth and justice — especially people who are viewed as “moderates” — will ignore those values. Some do rise to the occasion. Too often, we’re disappointed once again.

I kept hoping that two or more Republican senators would vote “no”. It’s still hard to believe that only one decided not to vote “yes”. I’m not crazy, so I wasn’t sure we would win. But I still thought there was a possibility as various Republicans expressed their “concerns”. I thought maybe they’d give each other courage. 

It’s still hard to accept that some politicians lie and otherwise practice bad faith so easily and so frequently. I blogged about a long article a few days ago that helped me understand how they’re able to justify their behavior to themselves:

If you believe, as my old friends now believe, that Poland will be better off if it is ruled by people who deserve to rule—because they loudly proclaim a certain kind of patriotism, because they are loyal to the party leader, or because they are … a “better sort of Pole”—then a one-party state is actually more fair than a competitive democracy. Why should different parties be allowed to compete on an even playing field if only one of them has the moral right to form the government? Why should businesses be allowed to compete in a free market if only some of them are loyal to the party and therefore deserving of wealth?

Why shouldn’t you lie in order to put the members of your group in power? Since the people on your side or in your group deserve to be in charge and make the important decisions, why shouldn’t you lie in order to get on the Supreme Court? Or vote “yes” to put that liar on the Supreme Court for the rest of his life?

Garrett Epps writes a “Requiem for the Supreme Court”:

[The Supreme Court’s] decisions were [often] controversial. Many people considered many of them wrong. But this was the nation’s Court; its decisions were rooted in the Constitution and in a shared interest in national unity.

Throughout all of this, Democratic and Republican appointees on the Court clashed, crossed, and formed coalitions. Neither those who praised it nor those who cursed it regarded the Court as the instrument of party politics.

But that idea began to fray…

One party made the Supreme Court a partisan issue. First Richard Nixon and then Ronald Reagan made attacks on the Court part of Republican Party dogma….But I think no fair-minded person could deny that a major barrier was crossed in 1991 when a Republican president, for political reasons, appointed a justice [Clarence Thomas] who was manifestly unqualified for the office, and who faced numerous, credible claims of sexual misbehavior as a government official. It was hard to watch the nominee testify in October 1991 without concluding that Anita Hill had told the truth and that Thomas had lied. But the administration pushed ahead regardless. This was the first major step over a dangerous threshold.

The next step came in 2000, when five Republican appointees on the Court extended its authority to decide a national election, in defiance of federal statutes, the Constitution’s text, and their own frequently expressed pieties about “our federalism.” The Court has aggressively made itself part of partisan politics, but even then, some of the justices who dissented were Republican appointees.

Partisanship sputtered for the next decade and a half. John Roberts was confirmed as chief justice with the votes of 22 Democrats––half of the party’s Senate caucus. Samuel Alito was the object of an attempted filibuster by Democrats, but was still confirmed with four Democratic votes. Sonia Sotomayor won nine Republican votes; Elena Kagan got five Republican votes and lost one Democratic vote. Justice Anthony Kennedy continued to move back and forth within the Court across partisan lines.

As the new Court settled in, people began to wonder whether the wounds of 2000 might be closing.

Then, in 2016, Justice Antonin Scalia died.

President Barack Obama, facing a Republican Senate, carefully nominated a moderate whom even Senator Orrin Hatch had previously designated as acceptable to both sides. But then the rules changed. Scalia’s seat, Senate Majority Leader Mitch McConnell said, would not be filled, no matter what. Republicans had a majority in the Senate and could use it for any purpose they wished—including making the Supreme Court seat a plum partisan patronage job to be filled after the next presidential election. Republican nominee Donald Trump assured Republican voters that he would appoint justices who would “automatically” overturn Roe v. Wade. To make this clearer, he released a short list of nominees, in effect putting their names on the presidential ballot beside his. Another threshold was crossed: a Court seat was a partisan prize, its holders subject to popular vote.

That brings us to the last few weeks in Washington, when the Senate Judiciary Committee met under the pretext that it would listen to testimony from an ordinary American, Christine Blasey Ford….The debate and the vote that followed were not about the Court, not about the law; they were about the Republican Party. They were about teaching the rest of us that we cannot refuse what Trump and McConnell want. They were a demonstration that in the new order there is no individual, no norm, no institution not subject to the control of the ruling party.

Brian Beutler analyzes “The Trumpification of the Supreme Court”:

Even before he stood accused of sexual assault, Kavanaugh was a totem for the forces of dishonesty and bad faith, angling to deceive his way into power by hiding and lying about his career and his agenda.

Kavanaugh has been systematically misleading the Senate since 2004. Rather than own up to his history as a partisan activist lawyer, he disguised his life’s work with spin and outright lies. He disclaimed his role, as an associate White House counsel, in helping to confirm some of the most controversial circuit court judges on the bench. He feigned ignorance of the lawless torture and warrantless wiretapping policies of the Bush administration, and then counted on Republicans in the Senate and the White House to conceal his complete record. He knowingly trafficked in stolen Senate Democratic records to help coach Bush judicial nominees, and then lied about it, concocting the flimsiest of excuses, and offering the Democrats whose documents were stolen not a single word of remorse.

Despite this background, he laughably insisted to the Senate in 2004 that his “background has not been in partisan politics.”

Kavanugh’s appointment is thus an extension of Trump’s contempt for U.S. governing institutions as anything other than instruments of raw partisan power.

Erwin Chemerinsky describes “A Very Tarnished Court”:

Conservatives [have fulfilled] a quest that began with Richard Nixon’s campaign for president in 1968 and intensified during Ronald Reagan’s presidency: putting a staunch conservative majority on the Supreme Court. But the way that they have accomplished this has greatly tarnished the Court, perhaps irreparably. It is impossible to know the long-term consequences of this, but the Court and how it is perceived will never be the same.

….This will [be] the most conservative Court since the mid-1930s, with five justices at the far right of the political spectrum. No longer will there be Republican appointees like John Paul Stevens or David Souter, or even a moderate conservative like Lewis Powell, Sandra Day O’Connor or Anthony Kennedy.

What is stunning is that each of the five conservative justices—Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, and Kavanaugh—came on to the Court in a manner that lacks legitimacy. Each is a disturbing story, but even worse, cumulatively they make it clear that the current Court is little more than an extension of Republican power plays in a way that never has occurred in American history.

He then recounts the ugly events that put Thomas, Roberts, Alito, Gorsuch and now Kavanaugh on the court. He concludes:

Any one of these events would be a hit on the Court’s legitimacy. But to have the entire majority of the Court there only because of shameful behavior inevitably will tarnish the Court.

It is unclear at this moment how it will matter that the Court will be clearly perceived as an extension of the Republican Party. Maybe it will lead to a crisis of legitimacy for the Court, as occurred in the mid-1930s. Perhaps at some point it will lead to open defiance of the Court. Maybe it will cause the Democrats to try to increase the size of the Court if they have control of the presidency and Congress after the November 2020 elections. [Note: the Constitution doesn’t say the Court should have nine members. It had 10 in 1863.]

The only thing that is certain is that conservatives will gain control of the Court as they have long desired—in the process, irreparably hurting the institution by the way they have accomplished this.

Political power grows out of the barrel of a gun. It also grows from the ideas of defunct economists. In the United States, for now, it still grows out of ballots cast and properly counted. 

The next election is 27 days away.