Republican Senate leaders decided Democrats were not entitled to see tens of thousands of documents from Kavanaugh’s work in George W. Bush’s White House. Before his confirmation hearings, nearly 200,000 pages of records from his time at the White House were classified as “committee confidential,” meaning senators could review them but not release them to the public. Another 100,000 pages were withheld from the Judiciary Committee altogether, because the Trump administration claimed “executive privilege.”
Democrats accused Kavanaugh of lying to the Judiciary Committee in 2004 and 2,006, when he was up for confirmation to the US Court of Appeals for D.C. Sen. Dianne Feinstein (Calif.), the top Democrat on the committee, said Kavanaugh gave answers that “were not true” when asked whether he had used materials stolen from committee Democrats when he was a White House lawyer under Bush. The Democratic Coalition, a PAC, has filed a criminal complaint with the Department of Justice against Kavanaugh for allegedly perjuring himself in front of the Senate Judiciary Committee.
But, barring criminal prosecution, Kavanaugh’s confirmation to the court was assured when Donald Trump was elected president in 2016 by a minority of voters, and Republicans held onto a two-seat Senate majority. There already was a vacancy on the Supreme Court after Republicans refused for nearly a year to allow a hearing on President Barack Obama’s centrist nominee for the Supreme Court, Merrick Garland, the chief judge on the US Court of Appeals for D.C. (The Democratic Coalition also filed an ethics complaint against Kavanaugh with the D.C. Court of Appeals, which would be reviewed by Chief Judge Garland.)
Liberals had a chance to break the conservative majority on the high court for the first time in a generation, after Associate Justice Antonin Scalia died Feb. 13, 2016. But enough liberals and blue-collar white workers in November 2016 took election day off, or decided they’d express their disenchantment with Hillary Clinton by voting for the Green candidate or the multi-bankrupt casino developer and reality TV star, while tens of thousands of black voters in Milwaukee, Detroit and Flint, Mich., were prevented from voting. It made just enough of a difference in Michigan, Pennsylvania and Wisconsin to send Trump to the White House.
Republicans also kept a 51-49 majority in the Senate, narrowly winning races in Pennsylvania and Wisconsin. Majority Leader Mitch McConnell (R-Ky.) then changed Senate rules to get rid of the filibuster for Supreme Court nominees so Republicans could put a right-winger, who turned out to be Neil Gorsuch, onto the high court for a lifetime appointment regardless of the objections of Democrats.
With Scalia on the court, and Justice Anthony Kennedy usually siding with them, Chief Justice John Roberts had the votes to gut the Voting Rights Act, campaign finance laws, environmental regulations and protections for organized labor. After Gorsuch replaced Scalia, the court upheld Trump’s ban on travelers from certain Muslim-majority countries; overturned a 41-year-old precedent that had allowed public-sector employee unions to collect fees from nonmembers; and approved a Texas redistricting plan that a lower court found discriminated against blacks and Hispanics.
Kennedy usually sided with conservatives, but he occasionally showed signs of independence. He was the deciding vote in the court upholding same-sex marriage, abortion accessibility and affirmative action.
With Kennedy stepping down, to be replaced by Kavanaugh, Roberts likely will have the votes to reconsider those liberal victories.
“Pro-life” Catholics might celebrate the Supreme Court upholding new abortion regulations. But those who believe that the right to life, liberty and the pursuit of happiness continues after birth might have second thoughts when the new court puts further curbs on labor unions, restricts the government’s authority to regulate businesses, and gives states more leeway to limit voting rights and gerrymander districts without federal interference — and gives billionaires more power to influence elections without requiring them to disclose how much money they are contributing, or to whom.
A solid right-wing majority might return the court to judicial obstruction not seen since the Supreme Court in the 1930s blocked many of the progressive attempts to help workers and farmers during the first four years of Franklin D. Roosevelt’s New Deal. The crisis nearly required an increase in the court’s size to resolve.
FDR ran for re-election in 1936 against “economic royalists” who used corporations, banks and stock dealers, agriculture, labor and capital to carve new dynasties and dominate the government. After Roosevelt won re-election with Democratic supermajorities in the House and Senate, he proposed adding as many as six new justices to the Supreme Court, which could be done by law. At least one conservative justice, Owen Roberts, buckled in March 1937, joining four centrists in approving a state minimum wage law in Washington, just a few months after invalidating a similar law in New York. Two weeks later the court sustained the National Labor Relations Act and in May it ruled the Social Security Act was constitutional. The move to expand the court was abandoned. A pundit reworked an old proverb to observe, “A switch in time saved nine.”
The economic royalists never gave up their opposition to the New Deal reforms. They redoubled their efforts after Lyndon Johnson passed his Great Society programs in 1965-66, including Medicare and Medicaid as well as civil rights and voting rights acts, federal aid to education, mass transit, rental subsidies and food assistance, environmental regulations, consumer protections and funding for the arts and public broadcasting.
In August 1971 Lewis Powell, a corporate lawyer, wrote a memo to the director of the US Chamber of Commerce outlining how business leaders could use their resources to shift public attitudes to restore corporate privileges. Two months later, Richard Nixon put Powell on the Supreme Court, and in 1978 he wrote the majority opinion in First National Bank of Boston v. Bellotti that invented a First Amendment right for corporations to influence ballot questions. The right has focused on cementing control of the Supreme Court ever since.
Whether or not Kavanaugh makes it onto the court, everyone from the center to the left should put every effort toward electing Democrats to the Senate and replacing as many Republican senators as possible, so Democrats can put a stop to Trump’s judicial nominees.
Unfortunately, Republicans will be defending only 10 Senate seats they now hold while Democrats defend 25, including nine senators in states Trump carried. The embattled Dems include Sens. Bill Nelson (Fla.), Joe Donnelly (Ind.), Claire McCaskill (Mo.), Jon Tester (Mont.), Heidi Heitkamp (N.D.), Sherrod Brown (Ohio), Bob Casey Jr. (Pa.), Joe Manchin (W.V.) and Tammy Baldwin (Wis.). But Trump is a lot less popular today, and if Dems can hold onto those seats, they have a good shot at winning at least two of the vulnerable seats now held by Republicans: Sens. Jeff Flake (Ariz.) and Bob Corker (Tenn.) who are retiring, as well as Dean Heller (Nev.) and Ted Cruz (Texas), who face tough Democratic opponents.
Polls show Democrats are in a good position two months out from the election, but Republicans will have the money they need to attack the Democrats and build up their own candidates in the closing weeks.
In the meantime, social media might help organize the Democratic resistance, but hashtags don’t win elections. Showing up and voting wins elections. And the Supreme Court is at stake. — JMC
From The Progressive Populist, October 1, 2018
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