Thursday, September 27, 2018

Republicans Weren't Borked; Democrats Were Garlanded And Are About To Be Kavanaugh'd

Brett Kavanaugh railed hysterically against the Democrats who "borked" him during the first round of confirmation hearings and tearfully protested that, worse than that, he was now the victim of "revenge on behalf of the Clintons."   Right, he is the victim here.  Steeped in Republican conspiracy theories, this rage-fueled rant did not exactly show the even-handed temperament of a fair-minded, non-partisan judge.

 "Bork," of course, is grossly misleading shorthand for the politicization of the judicial nomination process.  Republicans are fond of citing Robert Bork's confirmation hearing as the casus belli for rancorous and partisan battles over Supreme Court nominees.  But let's set the record straight.  Ronald Reagan nominated Bork, a radical jurist whose views on the federal government's role in protecting civil rights, voting rights and reproductive rights were far outside the mainstream.  He opposed 1960's landmark civil rights legislation on the ground that government coercion of “righteous” behavior is “a principle of unsurpassed ugliness.”  Not only opposed to Roe v. Wade, he disagreed with the Supreme Court’s 1965 decision in Griswold v. Connecticut which struck down as a violation of the right to privacy a law that prohibited married couples from using contraceptives.  And he did not believe that the 14th Amendment's Equal Protection Clause should apply to women.

Importantly, Democrats did not filibuster Bork's nomination; he was afforded a full, if incredibly contentious, confirmation hearing, after which six Republicans voted with the Democrats to reject him.  After Bork's Supreme Court nomination was scuttled, the vacancy went to Anthony Kennedy.  Imagine if Bork hadn't been borked.  He would have cemented an an extremely frightening and very solid majority that would have very quickly eviscerated rights for women, minorities, labor and criminal defendants, erected insurmountable barriers for challenging the actions of corporations, and gutted federal regulations protecting the environment.  Kinda what we will be facing if Kavanaugh is confirmed.

Reagan's post-Bork nominees -- Kennedy and Scalia -- were confirmed unanimously.  And even after the Democrats regained control of the Senate, the first President Bush's nomination of Clarence Thomas (to replace Thurgood Marshall, no less) was confirmed despite Thomas's extreme conservatism, well-founded and disturbing allegations of sexual harassment and a thin judicial resume.  Thomas won by a painfully slim 52–48 vote, with the help of 11 Democrats.

And Samuel Alito, the choice of the second President Bush to replace Sandra Day O'Connor, and a justice probably farther to the right than Scalia and Thomas, was confirmed despite enough Democratic Senators voting against him to have successfully filibustered and prevented an "up or down" vote.

When Justice Scalia left the building, as it were, President Obama called the Republicans' bluff and nominated not a left-leaning progressive to the Supreme Court but, rather, Merrick Garland -- a centrist with a reputation for fairness, civility and following the rule of law.  Judge Garland was someone GOP leaders agreed would be acceptable until Obama nominated him.  Then this unassailable jurist was unable to muster even the traditional courtesy meetings with Republican Senators much less confirmation hearings or a vote.

Ignoring the fact that Obama had almost a year left in his second term when Garland was nominated, Republicans contended that the next president should decide who should fill the Supreme Court, an argument that had no basis in history or logic or convention, but they stuck to it.  Well, they stuck to it until it appeared that Hillary Clinton was going to win the presidency, when Republican leaders such as John McCain and Ted Cruz began arguing that the Court didn't really need a ninth justice after all.  Unwittingly or not, they revealed the Republican plan to refuse to allow Clinton -- or any Democrat for that matter -- to appoint the next justice. 
That question became moot when the unthinkable happened and the malevolent orange shit gibbon became president.  He nominated Judge Neil Gorsuch to fill the seat stolen from the Democrats.  The New York Times, on its handy liberal-to-conservative chart, put Gorsuch to the right of Alito and Scalia, but to the left of Thomas.  Smarting from the Garland debacle, the Democrats filibustered the confirmation vote, but the Republicans voted to get rid of the filibuster for Supreme Court, and Gorsuch was confirmed by a vote of 54-45, with three Democrats joining all the Republicans

Republicans (and some apologist Democrats) like to say that the Republican removal of the filibuster for the Supreme Court was fair play after Democrats voted to eliminate it for lower court nominees.  But the Democrats reluctantly voted to get rid of the filibuster only after the Republican's unprecedented obstruction culminated in stopping Obama's three nominations to the D.C. Circuit based on the specious argument that Obama was engaged in "court packing" when he was merely seeking to fill existing vacancies.  If the Democrats hadn't taken action, not only would Republicans have voted to eliminate the filibuster anyway when they returned to power, but they would have many more judicial vacancies to fill.

So, here we are. Justice Kennedy retired and Trump nominated Brett Kavanaugh.  The initial hearing was marked by the Republican refusal to allow Democrats -- or the American people -- to know the content of hundreds of thousands of documents from Kavanaugh's time as White House staff secretary in the Bush Administration.  These documents could have shed light on any number of critical issues, including the extent of his involvement in crafting the Bush-Cheney policy on torture, his role in using stolen strategy memos from Democrats and his role in preparing certain right wing judicial nominees for their confirmation hearings.  Indeed, the few documents that were disclosed provide pretty convincing evidence that he lied to Congress about these issues.

Then, today, a truncated hearing on one of the several sexual assault charges against Kavanaugh -- with only the accuser and the alleged perpetrator permitted to testify. Again, the Republicans thwarted any wider inquiry that could have gotten us closer to the truth.  But we know the truth and it doesn't matter to Republicans.  Dr. Christine Blasey Ford was utterly convincing in her measured, credible testimony about what Kavanaugh and his accomplice, Mark Judge, did to her when they were in high school, as well as how it has traumatized her.  Then Kavanaugh came on with a Trump-inspired performance consisting of vitriol, conspiracy-mongering and lies.  He was evasive and remarkably hostile to questions from Democrats -- especially from the women Senators who had the audacity to question his qualifications for a position he considers his birthright

And in an utterly demoralizing redux of the Clarence Thomas-Anita Hill hearing, a woman's compelling story was shouted down by an aggrieved man and his enablers, while she was ignored.  Kavanaugh pleased Trump, thrilled the deplorable base of the GOP, and apparently gave Republican Senators enough cover to plow his nomination through.

Republicans believe that the third, purportedly co-equal branch of government belongs to them.  For Republicans, this is apparently akin to the legal principle of adverse possession -- where one acquires title to property simply by virtue of being in possession of it for a certain number of years.  The Supreme Court has firmly been in conservative hands ever since President Nixon replaced members of the Warren Court.  And they intend to keep it that way.

Until we stop them.


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