The NY Times needs to consider adding an asterisk to identify the party that nominated the Judge. Every judge should be identified by party of nomination as either (R*) or (D*).
To do otherwise is to violate your masthead philosophy "All the news that is fit to print". It also perpetuates the myth that judges are apolitical. See
https://www.legalreader.com/trump-administration-reshapes-judiciary/
Though I am conservative, I agree with most of what Greenhouse explains. Certainly, one can expect the Justices to be more candid when they don't need to soften their opinions to address Kennedy's vacillation.
But there's one part with which I disagree. "The current extreme polarization, with most important issues resolved by votes of 5 to 4 and one justice in a position to determine the course of constitutional law, is a historic anomaly." Can we define the word "polarized" ? If she means partisan, the Warren Court with Brennan, Douglas, Black, Frankfurter and Harlan was certainly more extreme. If she calls the Court polarized because of the similar numbers of conservative and liberal Justices, would it be less polarized if Trump at some point replaces the oldest Justices - Ginsburg and Breyer ? You would likely see far more 7-2 cases. Would such near unanimity comfort Greenhouse ? I highly doubt it.
So let's be clear. The issue is not that the court is currently polarized or that it would be less so (but more partisan) if Trump appoints two more Justices. Rather, the issue is that liberals see the end of cherished decisions - mostly from the Warren and Burger Courts (Baake, Chevron, Roe, etc.). After over 35 years of a supposed conservative majority on the Court, all I can say is that it's about time !
4
Like McCain, Kennedy's legacy is one of bucking, at times, the conservatives side. It the only reason Linda and the MSM, legal academia speak so well of him. If he had been a liberal that veered right sometimes. He would have been an apostate.......
3
The 4 "liberal" (or left, actually) justices vote as a bloc almost constantly.
But, the 4 (soon to 5) "conservative" justices voting together are an "activist" bloc of court destroyers AND, just for good measure...killers of women and advocates of slavery.
Keep up the dishonest hysteria and you'll get....
More Trump.
5
"...the right to abortion may lose its tenuous hold or because the sun may finally set on affirmative action."
Abortion never was a federal matter and "affirmative action" was never anything other than institutionalised, legalised, racial discrimination. If Kavanaugh's appointment to the Court results in these federal wrongs being ended, good!
4
The author should be commended on her ability to maintain some semblance of optimism about the Supreme Court.
There is no doubt what the ascension of Brett Kavanaugh will mean: The most radical, reactionary, partisan and ideologically activist Supreme Court in living memory - and likely ever.
The Citizens United case, the evisceration of the Voting Rights Act (in which John Roberts insulted everyone's intelligence with his deceitfully pollyannish insistence that racism was a thing of the past) and Hobby Lobby, the most fanciful piece of legal fiction ever passed off as a Supreme Court opinion, all showed that the four current conservative justices recognize no limits to the intellectual dishonesty, selective use or dismissal of facts, utter disdain for precedents and rabidly ideological partisanship they will use to reach their predetermined outcomes. And, there is no evidence in the entirety of Kavanaugh's careers as a rabid partisan and as an extremist judge to suggest that he will be any different. In fact, the evidence suggests that he might be the most ideological and partisan of them all.
The Court will have the thinnest of reeds as the deciding justice - John Roberts. The other four are set in stone. The only reason he might be such a justice is because of his occasional claim to have a concern about the legitimacy of the Court.
But, this thin reed will bend and break every time rather than disappoint a desired outcome.
Welcome back to the 19th century!
7
Reading this article is an enjoyable waste of time. The bottom line remains, that this will be a staunchly conservative and therefore, activist court that will undo decades of liberalization. We can hope that there won't be another revisionist disaster like the Dred Scott decision, but there are no guarantees.
2
I hope President Trump gets to appoint replacements for Justice Ginsburg and Justice Breyer. Then we would see a real transformation of the court.
5
The role of the Supreme Court Justices is to interpret the law, not change the meaning of law. Neutrality, not bias is the only acceptable expectation of anyone considered for a lifetime position.
2
It's a major headscratcher that the Court has become such a politicized minefield. If the Constitution and the laws aren't applied by the Court as written, then there is no Constitution and there are no laws...not really sure why that's so hard for so many to understand.
2
Kavanaugh is a constitutionalist, and a jurist with exceptional qualifications. I believe he’ll base his decisions on the law as he intepretes it. The fact he’s leans conservative seems to give some people clairvoyance as to exactly what his opinion will be on specific case even before he knows.
If the Dems want liberal judges who will legislate from the bench, and bend the constitution to progress the village’s agenda they need to Win Elections.
4
Another constitutionalist on the Supreme Court. Kavanaugh leans conservative.
He’ll make fine justice.
3
Watch Chief Justice Roberts become a centrist, the 'swing vote', the Justice Kennedy of the 'new' court.
“His final words might, I hope, be given a strategic place somewhere at the court, perhaps in a desk drawer where a future Justice Kavanaugh might come upon them as he starts his new job.
This is what Justice Kennedy wrote: ‘An anxious world must know that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.’”
Nah, Kavanaugh will glance at that sentence, wonder where that trite rubbish came from, and roll up the sleeves on his robe and savage the rights and liberties the Constitution guarantees.
3
It’s funny how the left deems it incumbent upon republicans to nominate a “median justice” when the idealogical makeup of the court threatens a return to an originalist interpretation of the constitution. When did a democrat president ever nominate a middle roader? The four democrat justices currently occupying seats on the court are reliably left leaning and more than willing to legislate from the bench.
It’s worth noting that the ascension of the democrats exemplar in the form of Justice Kennedy was the result of democrats in the senate “Borking” two nominations that preceded him. The disgusting histrionics displayed by the likes of Corey Booker, Kamila Harris, et al during the Kavanaugh hearings and clearly demonstrates that the democrat playbook for judicial hearings has not changed. What has changed is acknowledgment by republicans that comity in the senate has long since been abandoned and that as long as they control the senate they need to make hay.
4
Interesting analysis by a masterful observer of the Court.
But, perhaps a more telling and even possibly a compelling analysis could be to see the existing eight justices reviewed, questioned, analyzed and upheld many of Judge Kavanaugh's circuit court decisions.
As I recall, many of his authored decisions were upheld.
Possibly some of his dissents?
ijs
1
One of the best features of the new conservative majority on the Court is that it will more frequently abide by the Constitution as written - and repeatedly frustrate Ms. Greenhouse in so doing.
6
The rich win because they have the financial means to invest in winning. Brett Kavanaugh has spent the bulk of his career being a political partisan who's appointment rests solely on the perverse reasoning of an amoral President. Justice Roberts must realize this is a time where the institution of the Supreme Court itself, it's relevancy to the rule of law is in doubt. Alito, Thomas, Gorsuch, soon Kavanaugh their souls were lost to the Oligarchs long ago. Maybe Justice Roberts can prove he hasn't lost his.
4
It is distressing to see the anodyne words of Justice Kennedy on the holiness of the Constitution held up as a promise of fairness on the Supreme Court -- sometime in the indefinite future.
It is abundantly clear that our government today is not "committed always to the liberties the Constitution seeks to preserve and protect," except through a deeply inegalitarian lens.
It is abundantly clear that entrenched wealth began to recapture the Supreme Court with the appointment of corporate apologist and champion Lewis Powell, and that the Citizens United ruling completed a judicial takeover motivated by opposition to the New Deal, the Civil Rights Movement, and truly representative democracy.
In Kavanaugh's confirmation hearings, we have just seen a political operator from his head to his toes perjure himself repeatedly about documents he implausibly claimed he never saw or didn't know were stolen from the Senate's Democratic caucus.
Please, some political honesty, without rose-tinted odes to the supposedly sacred Constitution. The law is not apart from or above politics. It codifies and continually reshapes politics.
Bolstered by Kavanaugh, a right wing bloc will soon begin to demonstrate that the Constitution and the laws of the land mean only what a Supreme Court majority and a viciously gerrymandered Congress say they mean.
10
I'm worried that the main change will be, after a stolen seat and two justices nominated by an illegitimate president, that the legitimacy of the court, and not just its ideological position, will be fundamentally altered. I know in my own case, I'm far less ready to view any judgments as binding, any more than the opponents of Roe v. Wade did.
13
Those who fear a conservative court have less to fear than they might think. The judiciary is one of three co-equal branches. If the other two soon belong to the Democrats ---- which is not unlikely, laws could be passed neutralizing or overriding Supreme Court decisions in numerous areas:
1. In gun control, as Ms. Greenhouse notes, there is room for much federal legislation limiting access.
2. In voter id laws, there is room for an elections law barring voter id requirements in federal elections.
3. In abortion law there is room for favorable regulation of any facilities that receive federal funds.
4. In federal employee rights, Congress's power is virtually plenary.
5. Immigration law is pretty much delegated to Congress, which has the power to undo most of what Trump has done.
6. Tinkering with the ACA would overcome most challenges to its constitutionality,
And there is much more.
The appointment of Kavanaugh would be bad news. But don't despair. Kavanaugh's power -- the power of one justice -- is far from disastrous. Among 435 House members, 100 Senators, and a President, all who act in a manner that is sane, one measly Justice will be fighting an uphill battle.
2
@michjas All your comments rely on Trump signing such laws (or being replaced). I doubt he would.
1
You are far more optimistic than I am. Sure, there may be a time when the Democrats hold enough power to pass laws. However, before the ink dries, red state governors will have filed a lawsuit challenging those laws, and how do you think the new supreme court will view them? You're assuming the Democrats can gain power once the new supreme court has upheld every voter suppression and gerrymander republican strategists can dream up.
3
@michjas The legislative branch is permanently hobbled because 5/6th of the US population elects only half the Senate. The less industrial and less educated 1/6th of the country controls the other half. Progress is an uphill battle because of this disenfranchisement.
2
Yes, the court will be more conservative but what about the expansion of executive power - especially when the president uses his office for financial gain?
The independent counsel law expired on June 30, 1999 so now we must rely on the executive branch of government - the president and his appointed officials - to investigate itself.
Consider that the FBI is under the thumb of the president at all times inasmuch as the director of the FBI can be fired by the president at any time.
That is exactly what happened to FBI director William Sessions on July 19, 1993 when he was fired by president Bill Clinton and told to clean out his desk and immediately leave the building. The following day the body of White House associate counsel Vincent Foster was found at Ft. Marcy Park.
The White House almost immediately pronounced the death to be a suicide. Subsequent investigations by the FBI, the park police and later by Ken Starr's top assistant Brett Kavanaugh also came to that conclusion despite irrefutable evidence showing the death to be a homicide.
I think that it's time to bring back the independent counsel law.
https://www.nytimes.com/roomfordebate/2012/06/13/did-any-good-come-of-wa...
https://www.pbs.org/wgbh/pages/frontline/shows/counsel/office/history.html
1
Thank you for this very thoughtful piece. Your logic and clarity are extremely valuable. I look forward to this new court with dread, however:the thought of all these cosseted, mostly white Christian guys telling the rest of us what to do is frightening. When the rulers--in this case, the Supreme Court-- with the final word are far more conservative than the citizenry, the little guys, the "others" lose out. I wish no one on the court ill, but I do hope that some of the men on the right find some way to develop some empathy and realize that their decisions have real life consequences. Kavanaugh, Alito, Roberts, Gorsuch have been so far removed for so long from real life that I can only hope one or two of them pull a Souter and go home to wherever they came from, leaving vacancies for individuals who will move the country forward, not backwards.
3
The Pennsylvania Constition of 1790 echoes the second amendment. The consciencious objectors among Quaker population were exempted from conscription both by the second amendment and the Pennsylvania Constitution.
https://en.wikisource.org/wiki/Constitution_of_the_Commonwealth_of_Penns...
Article 6 section two.
"The free men of this commonwealth shall be armed and disciplined for its defense. Those who conscientiously scruple to bear arms shall not be compelled to do so, but shall pay an equivalent for personal service. The militia officers shall be appointed for such manner and such time as be directed by law."
The USA did not need lying lawyers such as Scalia and Thomas to interpret the second amendment the historical documents explain the second amendment in plain English and do not require legal sophists to obfuscate their clarity.
1
What we need are term limits: for Congress and for justices.
No one in 1787 thought they'd live that long, and a Susan Collins might vote her conscience if she knew she couldn't run again.
If we do not, we'll be playing this game of ping-ponging ideologies for decades, if not longer.
8
Maybe the Communist Control Act (68 Stat. 775, 50 U.S.C. 841-844) will be enforced?
U.S. National Security Policy for the last 70 years has been to eradicate communism wherever found. Be a shame to waste all that blood, sweat, tears, treasure, and effort.
1
The angst over Justice Kavanaugh is puzzling. If anything, the hearings and press accounts have revealed that he is a decent man, who has distinguished himself as a circuit judge What the article doesn't take into account is that every judge grows into his or her position, learning from other judges and often confounding the President who appointed them. Justices Brennan, Blackmun and Souter are examples of that truth. The Court as an institution closely tracks public opinion and seldom, even under Chief Justice Warren, acts as a pathfinder making new policy ahead of the executive or legislative branches. If confirmed, Justice Kavanaugh will be conservative, but he will undoubtedly adopt eclectic views that do not seem mainstream conservative. And the Court surely is not going to overrule Roe, reverse Miranda or consign Brown to the dustbin.
4
@Christopher Rillo
Could you share with us, please, any evidence that Justice Thomas has grown into the role?
7
Times they are a changin. Get used to it. The court has become too important in our lives and we need the legislature to reassert itself.
2
Hypothetical question : What, exactly, would be the procedure for removing a new appointed Justice if very damaging information concerning Moral unfitness and possible past criminal activity ???? Asking for a friend.
2
@Phyliss Dalmatian
Impeachment, same as for the President or a Cabinet member.
6
Where are the Articles of Impeachment against Judge Kavanaugh for lying under oath during his 2004 and 2006 appointment hearings?!? House Democrats should have drafted the articles within hours of Lisa Graves' Sept 7th op-ed in Slate. DO YOUR JOB!!!
7
Great article. And Godspeed to Justice Kennedy. He served this country with honor and distinction.
1
In thinking about the left/right split of the court, I think it's important to keep in mind that left and right in legal terms is often different than it is in political terms. For example, is it more conservative to side with the police on warrantless searches or to side with those suspicious of government power? Gorsuch in the cell phone records case sided with those suspicious of govt overreach. I for one hope that all members of the court ignore politics and try to be intellectually consistent. The court should not mirror politics.
3
After what the Republicans did to Garland and Kavanaugh's refusal to recuse himself from possible criminal proceedings surrounding Baby-in-Chief who appointed him to the LIFELONG job, the Supreme Court no longer has credibility. America is getting sucked down the drain and the world laughs at you from the sidelines. As your President would say: "Sad."
6
@Andrew
America is not getting sucked down the drain. It has the strongest economy in the world. Trump will pass... we'll survive. As for recusal, it would be improper for a Supreme Court nominee to prejudge the issue of recusal. All decisions require waiting for all the facts and circumstances to be known. Answering hypotheticals is amateurish.
3
Thank you for an excellent article.
1
It is clear that constitutional interpretation is merely the application of legal scholarship to political perspective. Pretending that somehow the nominee should be evaluated as a legal umpire, whose scholarship and intellect will lead us to some kind of constitutional truth is a joke. The nomination hearings can only lead to more cynicism about our system, as the Senators pretend that the nominees political views are not the deciding factor in his nomination and confirmation.
Written Statement, Sen. Diane Feinstein, September 13, 2018:
“I have received information from an individual concerning the nomination of Brett Kavanaugh to the Supreme Court. That individual strongly requested confidentiality, declined to come forward or press the matter further, and I have honored that decision.”
“I have, however, referred the matter to federal investigative authorities.”
Well, that's ominous. Mitch McConnell warned the White House that confirming Kavanaugh would be rough, might run into trouble...but, Trump just had to have the one Judge who prefers an imperial president, like Trump, and who Trump believes will make Mueller go away.
3
Justice Kennedy voted with the conservative majority in almost all cases, frequently in 5-4 rulings, throughout his tenure. The appointment of Kavanaugh is highly unlikely to change the balance of the court to any great degree and the huge amount of conjecture in this article is just that, not formed on any basis other than speculating what influenced past decisions and the role Kennedy played in getting in the minds of other strong-minded justices. Kavanaugh's record, despite the mean-spirited and truly ugly editorial written by the NYT's editorial board and the disgusting behavior and comments of Democrats during his confirmation hearings, has been extremely balanced, thoughtful and reasoned. The scare tactics constantly rolled out by the Left have never proven themselves in reality, but when that inevitably turns out to be the case again it is certain that the Left won't change its tune and will continue to make the same claims it always has.
2
No message has described the state of our Supreme Court like the opening statement of Senator Sheldon Whitehouse. His listing of 5 to 4 decisions against people and for corporations is so very telling. Yet I have not heard it reported on anywhere. Instead they talk about abortion. The real problem in America is run-away inequality. Kavenaugh will continue the Republican servitude to the wealthy.
6
Kennedy was bribed. Likely through his Trump banker son.
4
I tend to look at Kennedy as the vote that put George Bush in the White House, with subsequent natiinal disasters, the vote that polluted our politics with Citizens United, and the vote that disenfranchised black voters in the South with the neutering of the Voter Rights Act. It is a disgraceful record. The man should not be remembered in reverent terms.
15
@Robert Hall and let us not forget the justice that colluded with the con to vacate a seat on the bench to ensure the public evisceration of the Constitution, rule of law and conceit of an independent judiciary.
8
As usual, a well reasoned and thoughtful, yet ultimately empty piece by Greenhouse that fails to take in to consideration the most explosive frisson that soon to be Justice Kavanaugh will bring to the Supreme Court:
Reigning in the Administrative State, aka the 'dark' or 'deep' state.
SCOTUS has been so contentious and central to our political landscape over the past few decades because its been doing the legislating that Congress is utterly failing at carrying out.
Should we get a re-balancing of our three branches of government - a more engaged Legislature, a less imperial Executive and a less activist Supreme Court - we might finally start having the robust debates and resolutions of systemic problems through Congress. Or not. In either case, it is more fitting for Congress to be expressing the will of the people, or not if we're so divided, than the SCOTUS.
3
I predict that Justice Roberts will go down in history alongside Marshall, as the pragmatist who defends the Court's role of protecting federalism by slapping down the extremes of both sides of our partisan duopoly. The Founders feared parties -- but they never foresaw our era, in which both sides play endless games of assault and retreat on both sides of the gameboard.
14
@Sequel Roberts seems like a mighty leaky vessel to pour much hope into. He singlehandedly destroyed the Voting Rights Act, a measure for which people died within his lifetime. Kris Kobach is still laughing all the way to the bank.
3
@Sequel
Silly supposition. The civil war was the most egregious example of Jeffersonian Democracy and Federalism being incompatible. Here in Canada we are finally hitting that wall with the not withstanding clause in the constitution. In a global economy all powerful states like Quebec, Ontario and Alberta cannot exercise the not withstanding clause in foreign treaties or can they? Where do we draw the lines when agriculture is a provincial responsibility and trade is a federal responsibility? The federal government may sign NAFTA but Quebec/Vermont have their own dairy agreement.
"This is what Justice Kennedy wrote: “An anxious world must know that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
What a joke! The liberties the Constitution preserves depends on your race, gender and income.
52
@Jacquie
no it does not
1
So many conflating a swing-vote with a swing-voice...
The two are completely different...
McCain made a second job – a weekend gig – out of being a swing-vote...
Collins doing an absolutely remarkable and modest job in her day job, being a swing-voice...
PS
Across the comments, here’s who got mentioned ...
Top 3 men...
> Kennedy – 22 times, across 12 comments
> Scalia – 13 times, across 5 comments
> Roberts – 10 times, across 7 comments
Top 3 women...
> All 3 Justices – once (in total, not each)
Talk about having a conversation like someone’s not even in the room...
Here’s hoping that these 3 speak up at work, when Kavanaugh arrives...
And that 3 already speaking up at home...
PPS
Regarding Scalia’s short-standing wisdom...
“...He then listed several examples of “longstanding” prohibitions, including gun possession by people convicted of felonies and prohibitions on carrying guns “in sensitive places such as schools and government buildings...
Think how many societal inequities and iniquities would be immediately resolved, if women flight attendants were permitted to carry handguns...
Let alone, women Justices...
Carrying scales – just so 1770’s...
Justice Roberts may be the sleeper here. While it was 5-4 or 4-5, he could side with conservatives when he suited him, knowing full well Kennedy wold vote in a way to give him an out. See right wing, I voted for xyz but Kennedy didn't side with me. Now he's in a pickle. Does he want his court to go down in history as the most regressive in well over 100 years? Does he want his reputation to be that his court repealed Roe v Wade, eliminated affirmative action, legalized discrimination by shopkeepers? I'm hoping not.
Wouldn't it be nice if someone on the Senate Judiciary Committee, perhaps Harris, had caught Kavanaugh in a perjury trap to be sprung in an impeachment proceeding after the election?
4
@JNR2
Where have I heard this plot before? I know it will come to me. Seems very familiar.
Kavanaugh will be a fine Justice. He’s a constitutionalist.
Not a judge who legislates from the bench as so many attempt to do these days.
1
Justices might be more open to say what they think, but the decisions will still come down on the conservative side to placate the dwindling minority and cause considerable harm to the majority of American citizens whom they are supposed to be actually representing in the first place.
5
@Joeif americans dont work we dont care what they want. The elected president wants Kavanaugh ! Until another president is elected we get Kavanaugh because we elected the president.
1
There is a feeling of foreboding now with five justices using seemingly neutral legal theories like "originalism" and "separation of powers" to soothe the general public while they slam the brakes on the spread of freedom.
135
@Sherry One person's freedom is another person's oppression....
4
@Dan It is revolting that civil rights have somehow come to mean to conservatives oppressing the "freedom" to deny birth control to women, or oppressing a state's "freedom" to close all the polling places in black counties. It's a perversion of the word.
1
@Dan
And When You’re Accustomed to Privilege, Equality Feels Like Oppression
Maybe it’s wishful thinking, but I sincerely hope that Justice Roberts will take his new position as the court’s center seriously. We’ll find out if he believes in the institution of the Supreme Court as a fair arbiter of facts and law.
If the court becomes a place where 5 conservative justices can always be counted on to side with Republicans, the court is no longer a court but a rubber stamp.
Our democracy is under assault. Imbedded in the concept of democracy is the idea of fairness and equal justice. If we lose that, can we still consider our government a democracy?
180
@Leslie
"Imbedded in the concept of democracy is the idea of fairness and equal justice."
No, not fairness. Fairness is but a sweet dream people indulge in as they do in S. Klaus and tooth fairy.
Sometimes, fairness can be a commodity that sleek politicians are so adept at selling to the naïve. Trafficking in fairness carries a risk of great destruction.
1
@Leslie
"our government" has never been a democracy.
The Founding Fathers feared direct participation democracy and the hoi polloi as much as they feared the British. The FF were as class conscience as any European nobility and just as defensive and possessive of their power and positions. The entire system for electing federal officials (president, senators and representatives) was designed and intended to put as little power as possible in the votes of the hoi polloi and as much power as possible in the votes of the 1% of the day: white males of property or means.
At Gettysburg Lincoln made Jefferson and the signers of the Declaration of Independence America’s Founding Fathers, not the creators of the Constitution. The concept of equality was not in the Constitution. It got there only with the ante bellum 14th Amendment, thanks in large measure to what Lincoln had said at Gettysburg and his idea of a national citizenship.
The Founding Fathers associated with the Constitution were concerned about protecting the rights and privileges of the top 1% of the day by limiting the political and voting power of the bottom 99%.
2
@Leslie No Les, our democracy is not under assault. But if you can shake the idea that it is, you will begin to see the truth again.
Kennedy to Greenhouse- Et tu Linda. For all the wonderful things you have said about me over the years for saving the things you cry about at night. And the praise you heaped upon me at the time for my wisdom of my decision. It makes the knife hurt even more.
2
@edward smith
The court was designed to protect us all from the majority by protecting our individual and irrevocable rights, something liberals would like to sacrifice to the mob.
1
What is the massage to the voters for this sham confirmation of a Supreme Court Justice? There are 51 Republican senators and not a single patriot who puts the American people over the protection of Donald Trump. Even if thousands of women will die from botched back ally abortions and our democracy is not worth two cents. That's going to make the public real keen to voted for Kavanaugh. I thing the price the Republicans will pay for Kavanaugh is a Democratic Senate and the end of Trump judges. And we are going to have to go through the trouble in 2021 if impeaching Kavanaugh for perjury and Gorsuch for accepting a stolen seat which was not Trump's to fill.
The Democratic candidate for president will have a winning issue which is expending the Court to 11 Justices and an Amendment limiting the term of federal judges to 18 years.
4
@Sheldon Bunin the majority win following the rules as defined by harry reed.
2
Now that conservatives have gotten a reliably right wing Supreme Court they may wind up reaping the whirlwind. Without the ability to win in court unions and left wing activists will have no reason not to try extreme extra legal tactics. Mass strikes even when it is illegal? Why not? Roughing up scabs, administrators or politicians? Sure! We have seen that in the Middle East this lack of representation has led to ongoing cycles of murders and bombings. God help us when it gets to that here.
Those who make peaceful revolution impossible will make violent revolution inevitable. - John F. Kennedy
3
Sequel: Republican talking points can't replace thinking. There are no extremists in the Democratic Party; that is a "both sides" myth that cowardly journalists and pundits use to hide from the truth. The plain truth is that the Republican party has been hijacked by extremists who are completely out of step with most Americans, including you. Nothing of sort has happened to the Democrats. The "both sides" dodge is killing American journalism, and democracy.
19
Impeachment isn't just for presidents. Something to think about...
1
Justices don’t live forever. The country will outlive clowns like Gorsuch and Kavanaugh, just as it outlived despicable Scalia, who gave us Dubya, Citizens United, ands stupid inpretation of the 2nd Amendment.
12
You can pretty much assume how low lifes like Sam Alito and Clarence Thomas will feel about Kavanaugh, but how will Roberts feel about a skunk and unabashed liar joining his court and sullying his reputation forever.
9
It certainly seems like the Supreme Court could become more conservative in its decisions. Hopefully some of the conservative justices will become more moderate in their opinions partly due to institutional considerations of the judiciary's independent role in our government under the Constitution. Also, the state courts could protect any constitutional rights the federal judiciary does not.
History has a way of sucker-punching prognosticators.
I envision a Democratic president taking office in January 2021, and the end of Justice Thomas's tenure shortly thereafter, along with younger replacements for Justices Ginsberg and Breyer.
The ideological pendulum may well swing sooner than we think.
7
A conservative court, just like the Trump presidency will motivate the left. I seriously doubt the GOP will ask the judges to overturn Roe V. Wade (It is pretty clear that the justices are politicians and take their orders from politicians and money donors). It will be very difficult for the GOP to herd the evangelicals if there is no legal abortion. It is the one issue that the GOP can not be successful with. The evangelicals will never get what they want. They are simply being used to help elect corporate lackeys, and one major buffoon as president.
5
What was the cause of Justice Kennedy's weariness?
An existential dread of a nation and court poisoned by partisanship?
Or the steady drip, drip of logic and history upon a series of poorly argued and obviously partisan decisions?
34
No, justice Kennedy was pushed out to bring
Bret Kavanaugh in a hurry!
1
Kavanaugh and Gorsuch are mouthpieces for the Federalist Society and have no respect for the Constitution "as written." It's becoming all too obvious that when a judicial candidate says he's a "textualist" or "originalist," it just means he's going to re-write the Constitution to fit his understanding of what the Founding Fathers meant to but didn't say. It's like they know more about the founding of this country than the founders themselves. I'd like the Court to re-insert the word "respecting" in the so-called "Establishment Clause." Why won't they? Because that's not what James Madison meant to say. Instead, let's ask Joseph Story, who was in diapers at the time of the founding of this country and who was not in a position to know. The Court's been dominated by conservative judges for 50 years. These new judges made their way up the Federalist Society ranks by taking the most extreme, outrageous positions hoping to get noticed - and nominated to the bench. When the Democrats get back into power, if they can overcome the Court-created-Republican gerrymandering, then the Democrats should do all they can to re-constitute the Court with 9 non-partisan judges. Or they can pack the Court, strip its jurisdiction over cases involving the Amendments, impose the most onerous standard of review possible and subject the judges to a set of ethical rules that prohibit their association with all outside advocacy groups like the Federalist Society and the ACLU.
4
First- ignore the rules. Then ignore the words. If they cannot be ignored, change them. Oh- too hard. Yes pack the court. This is the Democrat game plan. And he says the Conservatives are radical.
4
@Jon
Both Kavanaugh and Gorsuch received the highest ranking possible by the ABA, which was once the gold standard, according to liberals. Individual scholars, attorneys and judges on the Left who knew both men showered them with accolades. Justice Ginsberg had to apologize before the last election for suggesting openly that she and her fellow liberal justices would rubber stamp just about any liberal piece of legislation they had to rule on, the Constitutional be damned. We need a 6-3, 7-2 or 8-1 conservative majority to protect this nation from the mob rule liberals long to impose.
2
Anyone else feel like it's time to revisit lifetime appointments for the nine? When a hyper-partisan executive and legislative majority install pro-corporate justices, where's our separation of powers? Checks and balances are only financial terms for our current GOP.
See you all at the polls.
14
The intention of the founding fathers was that the legislative branch should be primus inter pares. The Congress was given the power to levy taxes, raise an army, veto the president, remove the president and elect and impeach judges. Now we live in an age where the Congress has abrogated its responsibility on most things , including declaring war and we place so much weight on the selection of one or two individuals on the Supreme Court. This is not the system as designed and power needs to be restored to the people through the Congress but unfortunately they don't have the courage or wisdom to effect that.
20
@Abbott Hall You're confusing the role of the Legislature with the role of the Pope during the Dark Ages.
The Executive was given enormous powers precisely because it was the only branch of government that was in DC 24/7/365. Jefferson's ideal legislator was back at home, plowing turnips and flogging enslaved people for most of the year.
1
@Sequel You may want to acquaint yourself with the Federalist Papers so that you can understand what they intended.
This is not my field, but my strong suspicion is that this will be the first time since 1953, when Earl Warren joined the Court, that it will be to the right of the country as a whole. Arguably, from then until now, it has always been to the left. That would be true on many criminal justice rulings in the 1960's. Abortion was highly contested in places like NY, when Rockefeller introduced it, and other democracies, when they instituted abortion rights, did so in a notably more limited way. So Roe was clearly out of the mainstream at the time (and arguably still is, though less so.) And with respect to affirmative action, to my knowledge that has never polled well in America. So it will be interesting, if the left no longer has the Court to rely on, will the population move rightward, as it seemed often to move leftward in response to the Court. At this point, it's too early to tell, since it's now the schools and universities that are the driving forces impelling people leftward. But there is a good chance.
2
I do not see this as "... a futile battle over ideology ..." The so-called resistance is a bipartisan affair. It is a battle for the wellbeing of our democracy and its vital institutions, traditions, and laws. How much would either side be willing to damage our democracy in order to come out on top? The Trump Republicans have made it clear that they see things in apocalyptic terms. If they cannot stay on top, they will simply blow everything up. I myself believe Roe v. Wade and affirmative action are as good as gone. Economic inequality is going to go through the roof. "What will the court look like when neither side of the ideological divide has to walk on egg shells ...?" In other words, it will be not only a conservative court but one that is radically rightwing and disagrees with what most Americans actually believe. Centrist, moderate, and progressive views will be altogether without influence.
16
Well written, bottom line I think what you are saying is you cannot predict history only make probabilities.
The court will almost certainly be more conservative but they will not bring back chains and slavery.
Actually I think the court was more ideological in the late 50s to early seventies with the basic Warren Court extreme left wing decisions on segregation, crime, abortion etc. and then turned more conservative with the Berger Court.
Ike thought Warren was supposed to be a conservative and he turned out to be one of the biggest liberals ever.
The Berger and Roberts court certainly was conservative but they did not overturn Roe, even voted for gay marriage, ACA , burning the flag etc.
Bottom line if the new court becomes a Roberts' kangaroo court and goes far conservative, like Warren did on the side, voters will start voting in the dems and nominate liberal judges and the cycle will start all over again.
The Republic will survive. Some people will get hurt but others will not.
1
@Paul
"The court will almost certainly be more conservative but they will not bring back chains and slavery."
We hope. The way things have gone in the past 20 years I am beginning to think that nothing is too low for American Conservatives, and nothing is impossible.
May fate be kind to us.
3
Do we have to worry about the advent of a Supreme Court that has become so politicized that no one respects its rulings any more?
Will we slide into a period when the legislative and executive branches treat Supreme Court rulings like President Andrew Jackson did when he reportedly said, "John Marshall has made his decision; now let him enforce it."
3
@Sam Harnish
When two of the justices were appointed by a President who owes his victory to a foreign power's interference in our elections that he and his campaign repeatedly encouraged, and another two justices appointed by a President who was himself annointed by the court when they stopped the Florida recount, then yes, I think we are at that point.
6
The questions that this court will answer concerns "what constitutes rights." Will states have the right to discriminate against minorities cause the majority feels their right to object is being violated? Who has more rights, the pregnant mother or the fetus? Can the right to vote be infringed upon by those that are already in power? Can all people of religious group be band from entering to the US by a President for reasons that they are of a religion that harbors radicals or because their is a war in their country? Can weapons meant for war be purchased freely by anybody for protection purposes? And, can unlimited amounts of money be used to influence campaigns, or by votes by promising tax deductions?
2
Greenhouse did not mention the most disturbing prospect the new court opens to view. Without need of deference from a swing justice, the partisan majority can tinker at will with the political system. Already, it has shown eagerness to take on cases which affect the process of politics directly, such as Citizens United, and the recent gutting of the most important part of the Voting Rights Act.
Now, without that previous swing-justice restraint, the court is enabled to jump—with yet more ambitious designs—back into that fraught class of cases. De facto corporate rule of the nation looms as a prospect. Or permanent national rule by the red state minority.
All it will take is a mandated end to judicial deference to congress and the executive with regard to regulatory law. Look for that to be high on the new court's agenda. The court can rule any federal regulation a taking of property, or an infringement of liberty, and by fiat turn any political effort to the contrary into a matter of constitutional amendment.
That would put all such questions to the test of ratification by a super-majority of states. As a practical matter, any political question the court designated could thus end up in the hands of a few hundred red state legislators, comprising the majorities in the upper houses of the 13 smallest red states.
What stands against that outcome is now only the self-restraint and wisdom of the right-wing majority. They have the power to do it.
2
Kind of amusing that Ms. Greenhouse has the hubris to assume that because Justice Kagan and Justice Breyer could not possibly have seen the Masterpiece Bakery case differently than Ms. Greenhouse did -- they must have joined Justice Kennedy's "weakly formulated" opinion only to stay on his good side. That's a remarkable amount of ego by Ms. Greenhouse.
1
Slightly off-message, but Justice Scalia's opinion in Heller was remarkably awful, starting with his airy dismissal of the participial absolute at the beginning of the amendment as irrelevant because it was syntactically independent of the rest. (But my dear Justice, that's why such constructions are called "absolutes"; surely you remember enough Latin to know that.)
Scalia's elaborate show of studying old dictionaries in an effort to read the framers' minds very much missed the real point. At the time the Bill of Rights was adopted, and just as today, the word "bear" had lost the meaning "pick up and carry around". Thus "bear arms" did not mean "carry weapons around", it was a term of soldiery, and relates pregnantly to the verbiage about a "well-regulated militia" that Scalia blew off. (Not for nothing do modern enthusiasts speak of "open carry" and the like, NOT "open bearing".)
That said, congratulations to Ms Greenhouse on another excellent column.
9
@als
From that type of reasoning we have only nine amendments in the Bill of Rights protecting inherent individual rights free of infringement by the government, and the 2nd Amendment was simply thrown in, how, by mistake? You can't divorce one Amendment from the context in which the entire BoR were created, and that was specifically to name those, forgive me, God-Given Rights, held by each and every individual citizen in the nation. This was the background and foundation on which the BoR were established and the context in which ALL of them must be viewed. "The Right of the People" is used throughout the BoR. Are we to infer, therefore, that those rights only apply to rights liberals believe we should have?
I hope this isn’t an example of Ms. Greenhouse’s legal scholarship because she is wrong to infer that Scalia needed to add softening language to assure an individual right interpretation out of Justice Kennedy in the Heller case (2nd Amendment). It was already there. If she reads, and especially listens, to the oral arguments she will find that in a number of examples where Kennedy clearly shows his individual right interpretation before opinions and ruling were crafted. For example: “…in my view it [with the second clause of the 2nd Amendment] supplemented it by saying there's a general right to bear arms quite without reference to the militia..”. (page 13, 18-23)
With any luck, we will be talking about impeachment, in January. Vote Democratic, all the way down the ballot. It's in your own interest, and the nation's interest, to do so.
13
@ChesBay
Careful what you wish for. Trump is corrupt and incompetent, to be sure, but he is the devil we know. Pence, in many regards, will be worse than Trump. Besides, Trump is eminently beatable in 2020 at this point; Pence would not be such. Just hold your nose for two more years.
1
Scott Werden--mike dense will be investigated, as well. He's up to his neck in the Mueller investigation. And, the "president" can't veto impeachment. It's not a congressional bill. I am not worried. Besides, a Democratic Congress will hog-tie the Oval Office, just the way the Goops did to Obama. I won't worry about that.
After the U.S. Senate the Supreme Court of the United States is the least democratic branch of our divided limited power Constitutional republic where the people are the ultimate sovereign And the law is not fair nor just nor moral nor objective nor humble nor humane nor empathetic. Black African enslavement and separate and unequal black African Jim Crow were both legal.
Nothing can nor will change the gender, color aka race, ethnicity, national origin, nationality, faith, socioeconomics, politics history plus arithmetic nurtured bias of the Supreme Court. After all the justices are all biological DNA genetic evolutionary fit primate apes who evolved in Africa 300,000 years ago. And they are driven by their nature to crave fat, salt, sugar, habiitat, water, kin and sex by any means necessary including conflict and cooperation.
As near as I can tell, based upon my knowledge of history and comparative law, Kavanaugh will become the Carl Schmitt of American "law", with all of the pretend legal excusinating for which that German legal "authority" is notorious. What the de facto (and legally dubious) court packing has already accomplished (and which was already far advanced over the decade and a half before now) is the de facto delegitimization of the entirety of the federal bench. Indeed, the corrosively nihilistic philosophy of law that is central to the Carl Schmitt School of Law is regarded so highly among the totalitaian regimes of such states as China that they are rushing to inculcate it among their people in their formal "legal" education.
Once Kavanaugh is confirmed that will mean that Republicans have put two obvious perjurers on the court. Kavanaugh can take his place with Thomas.
But let us not forget the little lies of Roberts and Kavanaugh about being a fair umpire. Too bad no one asked him if he was a National League umpire, an American League umpire, would wear his chest protector on the outside or inside,or would he be considered a pitchers' umpire or a hitters' umpire. They all claim to use the same strike zone to call balls and strikes, but there are obvious differences.
Excerpts from the book, Captured: The Corporate Infiltration of American Democracy, Sen. Sheldon Whitehouse (D-RI) :
"America faces a crisis of corporate capture of democratic government, where the economic power of corporations has been translated into political power with disastrous effects for people’s lives. Corporations of vast wealth and remorseless staying power have moved into our politics to seize for themselves advantages that can be seized only by control over government".
Look no further than Neil Gorsuch to see how "money" was easily able to seat him on the SCOTUS and now probably Kavanaugh...both of whom whose judicial records, predictably, reflect the biggest corporate bootlickers that money can buy.
"Ever since our founding as a republic, Americans have fought to expand democratic freedoms and protect democratic society from being corrupted through "unchecked private greed" and undermined through grotesque inequality. One can clearly see the result of corporate power over policy in the present levels of wealth inequality—unmatched since the Great Depression—where all the economic gains in the past several years accrued to the wealthiest 1 percent".
"For democracy to work, the rules must be rewritten to prevent corporate capture of government and to create a system that supports fair representation for all Americans. Whether we fight to preserve our free system of self-government for ourselves and posterity is not a choice—it is a moral obligation".
14
The right wingers on the SC have shown no qualms whatsoever at overturning precedent -even those established by unanimous decisions. They are the definition of an activist court - looking for ways to overturn "liberal" court decisions and going to meetings and instructing right wing groups on exactly how to construct cases to bring to them so they can "decide" on overturning established law to promote right wing ideology. This is a very perilous time for our country. This court will drag us back into the dark ages when discrimination was the rule and corporations ran roughshod over normal Americans. Indeed, this is what Republicans have been fight for over the last 40 years. They are about to realize their fondest dreams - destroy democracy once and for all and allow ultra right wing fundamentalist Christians take over along with corporate control. If they are combined in the same entity, ie, Hobby Lobby, so much the better.
14
@Joe Rockbottom """"The right wingers on the SC have shown no qualms whatsoever at overturning precedent -even those established by unanimous decisions""""" and one might add the left wingers have shown great creativity in finding rights in the "penumbrias" where no one has gone before. Pendulums swing but the longer trend is back to MORE rights,....we can hope.
Linda Greenhouse is a wise and knowledgeable observer of the Supreme Court, but her view today that life will go on under a more conservative Court with confirmation of Judge Brett Kavanaugh reveals an unwarranted optimism.
Ms. Greenhouse assumes that the question is only the effect of Justice Kavanaugh’s drawing the Supreme Court into more conservative decisions. What if the Kavanaugh appointment actually has an existential effect on the Supreme Court?
If we couple the Kavanaugh belief that an American president should have unfettered, emperor-like power and that nothing in the Constitution gives Congress or the people any right to remove a president, the Supreme Court of the United States will become a useless appendage.
The Court may not even be allowed to rubber-stamp a president’s executive orders. The Court will exist only to decide lesser disputes between citizens, which we have already been told includes corporations.
There will be no reference to any Constitutional duty of fairness on the part of the lower courts or even on the part of the litigants. The subject matter will only be stuff in which the White House or White Palace has no expressed interest.
The presidency will become an all-powerful position, and the person holding the position will be some member of the Trump family who has inherited the title.
The Supreme Court will effectively disappear.
7
The author relies on justices being ideologues to make her case.
Why?
These are lawyers. Lawyers engage in transactional law all the time.
Definition:
"Transactional lawyers counsel individuals and organizations on the legal issues generated by their business dealings. Many transactional attorneys are drawn to this type of work because it is generally less adversarial than litigation.
[By extension, Justices are inclined to this in the "business" of the Court, no?]
"Practice Settings:
*Government (Federal, State and Local)
*Nonprofit and Legal Services Organizations
*Unions
*Private Public Interest Law Firms
"Skill Set:
*Analytic skills
*Legal research
*Written advocacy
*Drafting skills
*Client relations
*Negotiation"
All quotes from: https://hls.harvard.edu/dept/opia/what-is-public-interest-law/public-int...
I think the liberal / progressive Justices will try and cut deals for votes on issues that will come before the court that they want to decide favorably.
1
"History does not stop in 2018."
Exactly. I'd add that it did not stop in 2016, and will not stop in 2020 whatever that outcome.
History is the long game. It it a long series of moves, of events, laid out over a pattern extending long past our own time on stage.
We ought not to make our choices with an extreme short term view. That is willful blindness.
"But Trump will end elections and freeze things the way they are now" is absurd, not least because ending elections would not freeze things, it would detonate them.
One justice playing hard to get was the motif for years, but the Warren Court lasted far longer, and yet it recedes into mists as if it were but a moment. The oddity of Kennedy's behavior will disappear as fast as he has.
The long view taken by Linda Greenhouse here is welcome, and we see far too little of it elsewhere.
The insight is very helpful to understanding. The others are now freed to act differently. Of course they will, they are very aware of their agency, very driven to their beliefs.
One caveat. We could see a new Kennedy. We could have a justice who sees the power Kennedy had from his two-faced game, and who wants that power now. That could well be Roberts, who has surprised already, and who has shown a desire to make it his Court, and who has the title and other extra influence to do it.
11
If the government is committed to the Constitution and freedom, what happened to the Voting Rights Act and who voted to allow a travel ban motivated by announced hatred?
If the Court is taking away the right to vote, allowing unlimited corporate political spending and using a religious test for travelers then voters may question the legitimacy of the Court.
Kavanaugh's testimony under oath that he will follow precedents is at odds with his right-wing record. The whole country knows he will vote to the right of existing law.
The new Court will veer to the right as it takes away people's rights, including voting rights and health care. The voters are going to the left as they seek their rights and the benefits they have paid for.
The Court will be in conflict with the voters.
14
@Robin Foor
"Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."
8 U.S. Code § 1182 - Inadmissible aliens
Seems pretty clear Robin.
As many citizens and scholars have already noted, the idea of a Justice claiming the mantle of "Constitutional Originalist" strikes me as specious. How on earth can anyone claim unerringly reliable knowledge of what the founders intended in drafting the Constitution, a document featuring language that is often vague and arcane, and that at the time of its drafting in 1787, could not possibly have foreseen, much less accounted for, all the issues of twenty-first century life?
25
@Jackson - It's specious because, except for the Dutch East India Company, there were almost no corporations in 1787. But our "Constitutional Originalist" Supreme Court chooses to side with Corporations over Citizens every chance it gets.
12
@Jackson -- "at the time of its drafting in 1787"
While I agree with your point, I'd add that it wasn't really drafted in 1787. Other men not yet born in 1787 drafted other key language, things like the 14th Amendment, that changed the whole document's meaning. Still other men not yet born when that new language was written have read it in new ways, as they make sense of the way the words tie together between the actions of two very different groups of men, the Founders and those Radical Republicans who had just won the Civil War.
What if the Radical Republicans intended to give too little weight to the Founders' words? What if some of the Founders ideas were contrary to the later Amendment, as in accepting slavery? Later efforts to reconcile the two groups are necessary, not illegitimate refusal to accept either group.
3
@Brian -- There were no corporations in America in 1787. The first important industrial corporation was the Boston Manufacturing Co. in 1813. a military industrial enterprise created to meet needs felt to produce armaments during the War of 1812.
Even the East India Company was created as a one-off, by special act of Parliament, a quasi-governmental organ granted monopoly power to act in the stead of the government to promote a government interest.
I just want my children to grow up to be citizens in a Republic, and not subjects in an autocracy. That is precisely what generations of Americans fought and died for. My main concern isn't about the particulars of any case, but rather the Supreme Court's penchant over the past 20 years for debasing citizenship by declaring "corporations to be people", "money to be speech", allowing "States Rights" to trump individual rights, and by repeatedly overturning precedent by siding with corporations rights over workers rights. Workers are citizens. Corporations are not.
The President and the government hold great power over the people. The only two ways the people have of holding the government accountable and protecting our citizenship are the right to vote and a truly politically independent Supreme Court. The Supreme Court is no longer independent, so the only recourse we have is to vote in every election, even if it's only for the county dog catcher. Voting has never been more important. This is our generation's Pearl Harbor moment. I will do my part.
34
@Brian -- "The only two ways the people have of holding the government accountable and protecting our citizenship are the right to vote and a truly politically independent Supreme Court."
The Congress is supposed to be a check upon the Executive acting autocratically as it executes the functions of government. It disgraceful failure should not be ignored as if only the Court ever existed for the purpose.
It could even be revived by a "wave election" in the House, such as we saw when Gingrich crafted a wave that nearly killed it by buying a wave of pliant young Republicans using the first of the huge PACs, his GOPAC, initiating the current reality of Congress bought and neutered.
The press was also meant as a check, and is functioning that way right now. It is doing that more so with the current use of public media to empower more voices, some good and some bad as always.
Civil society is also a check. That originally meant churches and social groups that met for speakers. Today it is much expanded.
Our checks don't always seem fully effective, but that is in part because we see more clearly the actions of the executive, but not so clearly what they might have been but for checks, and many of the checks are themselves behind the scenes, less visible even as they have their influence.
There is much scope for us to act. We mustn't give up. We must do more, as more is called for today.
5
After decades of liberal courts, our system has worked to correct the bias. The American people voted for a president that promised to appoint conservative judges to the Supreme Court and he is keeping that promise. The next few decades should correct the liberal "judge-made" law that the American people clearly rejected in 2016. Our founders were clearly ingenious in creating our constitutional republic. Our laws should be created by the people and for the people, not by judges.
5
@RGV -- Average voters polled would not support the Bill of Rights. They also would not agree on which rights they don't support.
Accordingly, "American voters" did not act as a bloc to stop liberal ideas, any more than they as a bloc ever rejected all conservative ideas.
Most actually manage to hold some ideas in each camp, and think the posturing of purists is obnoxious.
5
@RGV Really? The supreme court has been conservative for the last forty years, and it's only continuing in the direction now because Mitch McConnell stole a seat on the court from the previous president. Your faith is in the power of lying, stealing and cheating, not in the American Constitution or judicial system.
6
@RGV
As I have indicated above (later) on this comment thread, a Kavanaugh "justice" (sic) would adhere to the Carl Schmitt School of Law, thus amounting to the completion of a delegitimized "Supreme" Court. For those who have eyes to see....
Dear Senator Schumer,
The Democratic Party can prevent Kavanaugh from being confirmed. Show Senator McConnell he is not the only one who can play hardball with the rules of the Senate. You cannot filibuster a Supreme Court appointment, but you, with a strong, united, party in the Senate, can filibuster the very next item on the floor. You can continue the filibuster through November 7 or even until the beginning of the new term, and do so until Kavanaugh's nomination is withdrawn and Garland is nominated, approved by committee, and brought to the Senate floor for a vote. And make this offer, now that Gorsuch sits in Garland's seat, and when Garland sits in Kavanaugh's seat, the Democrats promise to hear every nominee of any President through the very end of his or her term in office, so long as the Republicans publicly promise to do the same, permanently.
Please Register before October 12 and vote on November 6.
57
@LeftIsRight
I love this idea!
Perhaps our next Supreme Court Justice should be Linda Greenhouse? If only. She would bring the critically important historical perspective to US Justice; one that this court appears ever more willfully blind to. The arc of the moral universe may, eventually, bend towards justice but it requires a concerted effort to bend it; one that these days appears more frequently derailed by fear and backlash. This Court, with the addition of Judge Kavanaugh, appears poised to take a hard right down backlash alley and a u-turn from justice.
22
@Renee Russak -- "She would bring the critically important historical perspective"
I like her perspective and would support her as a justice. It is a nice idea.
However, the current justices have lots of historical perspective. They just see different high points forming a different pattern.
History is vast. It offers something for everyone, rather like people who promote their own ideas with a cite to the Bible can find whatever they seek.
Judgment is a different thing. Common sense is not common.
Let's hope it remains the Roberts Court and not the McConnell court.
All three branches of government in the US are dominated by irrational ideologues so that only a complete wave electing Democratic candidates can rescue democracy
4
So, Trump is going to pack the court with White men. Of course Hillary would have picked moderate judges, that look like America. Dark, female, with some LGBT-trans folks, thrown in for good measure.
OK, now for the nightmare. Is the abortion debate settled? The answer is "Yes", when asked by the the Senate Judiciary committee. Same as the question, "Is slavery a settled issue?" In 1859, that too, was a "Yes".
3
@Mike -- "In 1859, that too, was a "Yes"."
You write that as if the contrary judgment of ten years later could never be revisited. Think again.
As Artificial Intelligence becomes reality, and robotics does more work, will we grow an economy that needs and uses all of its people, or one that serves a few and discards the rest? What would the rest then become, if not slaves or serfs or worse? Those were inventions of human politics, and lasted far longer than the contrary ideas have lasted so far.
We've seen images of it in books and movies for a hundred years, since HG Wells gave us a future with Morlocks, so it has been thought about.
You are too optimistic.
1
@Mark Thomason Not only was slavery not revisited, slavery as an institution was prohibited in the US Constitution amendment 13 specifically, 14 and 15, tangentially.
I haven't seen any amendments mentioning abortion, specifically.
Bush v Gore, "Citizens" united, and finally, the refusal by a single person in the Senate, I refer to Mitch McConnell, have so compromised the SCOTUS it is a far cry from the previous courts that brought us Brown v Board of Eduction & Roe v Wade. Currently the court has one seat unconstitutionally stolen from Merrick Garland, one seat nominated by a POTUS who made a devils bargain with the Russians and will soon face indictment and removal, and a second such nominee. The Senate GOP has violated the Constitution by evoking the nuclear option (51% v 60% as directed by the Constitution) to confirm one justice and soon a second based upon 26% of the electorate and the electoral college failing to do their one job!
The current court is a joke. Our democracy is failed by Mr McConnell. You will find this the opinion of many besides myself.
8
@LaPine The Constitution makes no mention of 60% - or any other fraction - being needed to confirm any appointments. Super-majorities were put in place by Senate rules, not by the Constitution.
5
Personally, I just enjoy seeing Trumpists bellow about politicizing the Court, given how guys like Clarence Thomas got on it, what happened to Garland's nomination, and McConnell doing away with the filibuster. It's fun seeing them screech about Robert Bork, the only guy in the Justice Department feckless enough to fire Archibald Cox, too.
I do not find it nearly so amusing to see folks who think they're leftists and progressives bellow about how we need to pack the Court, and make sure we get people who Have the Right Views on it.
3
Progressives have been calling for the equivalent of a Liberal 'Federalist Society.'
One already exists: The American Constitution Society.
I doubt very much that it will ever have the influence the Federalist Society does. Why?
Principle only means something if it produces a result you disagree with.
Progressive jurisprudence is usually results oriented - people sense that and see through it - and that tends to weaken moral authority and political influence in the long run.
Alan Dershowitz is an honorable exception - he is willing to countenance results he clearly does not like.
Conservative jurisprudence is (usually - not always!) more principled, caring not for the result - the result is irrelevant.
Examples? Scalia.
He consistently ruled in favor of criminal defendants (4th, 5th, and 6th Amendments) and pornography (1st Amendment) although clearly he was no friend of criminal defendants and pornography. (Clarence Thomas' history with respect to porn is a bit different!!)
Again, principle only means something if it produces a result you disagree with.
I don't see that with today's progressives, and that is to be regretted.
4
When the Supreme Court becomes partisan and no longer is the neutral observer/applier of The Constitution, then the very essence of The Great American Experience is lost. But then again, it was John Marshall who set the precedent of "Judicial Review" -- extending the court into unknown territory which has now become the mainstream.
What do you mean "it's over"?
Calling it over and moving on has been a persistent problem plaguing Democrats for decades. Democrats need to stay and fight and fight and then fight some more if they lose. For example, as new documents and emails come to light, a case for perjury may grow stronger. Instead of saying "oh well, it's too late" as Democrats might, they should organize an Impeach Kavanaugh movement and then when they have the Congress, they should DO IT.
Maybe they can get a two-for-one impeachment deal, Trump and Kavanaugh, both for lying, at least, and one under oath.
Send a loud message -- here and now -- that Democrats aren't going to "take it" (like they usually do). That a Supreme Court justice sliding through a rigged appointment process isn't enough. When the documents come to light that show you were lying (which I already think they do) you, even a Supreme Court justice, will be held accountable.
Send a message that Garland will be avenged.
These are the spirited actions that galvanize people and get them to the polls. Maybe people will be more proud to call themselves Democrats when Democrats start fighting.
8
The current nominee for justice of the supreme court was selected by a president who lost the popular vote by almost 3,000,000 and who is recognized as a liar, a thief, a slanderer, and incompetent to fill the office he currently occupies.
Yet this nominee will surely be confirmed by the republican senate majority. What does this tell us about republicans? Does it tell us that these senators are bereft of conscience?
14
@Pete Kantor One minute Dems are telling us the Wusskies fiddled the election numbers (isn't this the collusion angle Mueller's seeking?), and the next, with a straight face, that the numbers for the "popular vote" were 100% legit.
Two possibilities here....A) You are mightily confused, or B) You know a lot more about what the Wusskies really did, than the rest of us do. Which is it comrade?
When Dems take the White House, they must put a tenth and eleventh justice on the court. Nothing prohibits that. Until then, watch the religious right make us all have to live according to their own religion, under the guise of "religious liberty."
3
Kennedy's last words are a joke to someone like Kavanaugh or Gorsuch. They're conservative shills. They care nothing for the rights of workers, women, people of color, and certainly not the poor. The progress of the last several decades is out the window, all at the behest of a president who was elected with a minority of the vote and with the aid of a foreign adversary.
Conservatives have sold out their country and their so-called "constitutional values" for corporate profits and the bragging rights that come with "sticking it to the libs." Petty and disgusting.
28
Well, shoulda thought of this on November 8, 2016! Remember the mantra of the left at the time: "Hillary and Trump are the same".
Elections matter, folks. If you did not vote for Hillary Clinton in 2016, you have nobody to blame but yourself.
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That was actually a Koch Brothers meme that many Republicans and a few Sanders fans promulgated.
1
@Mike -- Team Hillary did not get away with more of the same by fear tactics. That the alternative was awful does not justify keeping the status quo in power forever.
Offer something better than you have, or lose. If you won't, you'll keep losing.
Democrats were defeated by offering what they offered, what was rejected by their own voters, who would not turn out for more of the same, one more round of it. Learn something from that.
@Mark Thomason Again, you are correct.
No-one who voted Trump thought he was "the same as Hillary", but as Mike pointed out, plenty of leftists who'd seen Hillary shafting Bernie consoled themselves with the fake notion that "Crooked Hilary" was no worse than Dirty Donald. In fact she was/is far worse, and sensible people noticed it.
Nah, not the MSM 93% who donate to the Dems, nor the 100% of White House reporters who do the same. Nah, not THEM. But the real people, yes!
The real difficulty now for the Dems is that actual living people are feeling much better in general about their lives. the ones who were resentful and voting for hatred (= calling 60+ million Americans Deplorable) are now WAKING UP.
They are now working and making much more than before. Those who voted Democrat are watching cities run by Democrats decay while they themselves get jobs and improve their own lives by RUNNING their own lives.
You're right about the candidates. Ageing haters like Maxine Waters telling people that hatred is OK are sure losers. Dump these liabilities now!
I walked on eggs once. Fortunately they were hard boilded, like Linda.
2
I don't have Kennedy's Muslim ban opinion in front of me, but I remember it as saying, the president may do this, but please don't because he shouldn't. To which the President summarized: I've won, now I will keep my racist promise. And with that heritage, Justice Kennedy turned the gavel over to that President to appoint his successor.
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Wow, no wonder we have Trump, with comments like these, lots of these folks are living in a fantastic bubble of willful ignorance or intellectual dishonesty.
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@Parks207 When one's head has "exploded", how can any kind of sensible comment be expected?
I'm guessing that if you took a straw poll of the posters on here, you'd find that 90-99% regard Hillary as a "good person". and that things would have been better with her as Prez. Delusion and Democrat go together like a horse and carriage, eh!
The data show that Kavanaugh has been divisive in his present position on the Appeals Court, and often seeks to overturn precedent, utilizing facts not at issue:
https://www.washingtonpost.com/news/posteverything/wp/2018/07/10/kavanau...
Considering the charges Kavanaugh has misled in Senate hearings for his previous confirmations, there is also the possibility he will be impeache once the information being withheld about his White House years becomes public.
This confirmation shouldn't be rushed by POTUS 45* looking for a Justice who believes a POTUS is beyond the law's reach.
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@R. Law When it is proven that Trump is an agent of the Russian federation all his appointments are subject to impeachment on two grounds. First we cannot let a foreign power choose our judges. Second we cannot let a criminal profit from his crime. I realize that this is a bit new because impeachments in the past have come about due to misbehavior by the office holder. These would be about the legitimacy of the appointment. We do have to win the legislature first and that won't be easy.
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@shiboleth - We're agreed; it will be about nullification/erasure, which GOP'ers have wanted to counteract by leaving Pres. Un-indicted Co-conspirator 45* in office as long as possible, hoping to forestall such nullification.
Of course, from now on there is no GOP, just Trumpists, and reverting to 'Regular Order' will necessitate erasure of the nullified Banana Republicans' actions these last 2 years.
1
Love Linda. I get an education every time I read her words. We are so doomed. A theocracy is forming and I am too old to do more than send a few bucks if we could ever get organized enough to start a response to thee Federalist/Christian Taliban. As will Rogers said, “I don’t belong to an organized political party. I am a Democrat.”
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The Supreme court has become a political wrecking ball, severely compromising it's position in our society. We are in desperate need of Supreme Court Justice Reform!
We must end lifetime appointments in all courts and impose 10-year term limits. That should solve a myriad of problems.
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@Sarah -- On the present Court, those term limits would wipe out the good and allow Trump to replace them with worse. Be careful what you wish for.
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@Sarah Really? Which ones?
Unfortunately, Justice Kennedy's words read more like the futile last wishes of a tired man than the inspiration for a new justice. There is an edge of sadness there, especially in the final few words, "...so that freedom...lasts."
I fear it will be left to my grandchildren to bring that hope back to life, because right now that freedom appears to be in great jeopardy.
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Yes, it will be a more "honest" court because argument will be on the principle of the law, not on whether it can be squished to get Tony Kennedy or Sandra Day O'Connor to sign on. In other words, we will have rule of law, not rule of judges.
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@JOHN Seriously? Few things are plainer than the efforts of the Justices to tailor their legal and constitutional arguments to make a decision come out where they want it to. Both liberals and conservatives do so, but in my observation "conservatives" (the shudder-quotes are on purpose) are much more guilty of such distortions than their more liberal colleagues.
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America is about to learn what women learned in the 1800s that the legislative branch is the only true sovereign of a free people after "originalists" on the Supreme Court ruled the 14th Amendment only applied to men not women's emancipation. Americans who value liberty and justice for all are in for a long slog because our rights include our responsibilities to promote the general Welfare.
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America is about to learn what women learned in the 1800s that the legislative branch is the only true sovereign of a free people after "originalists" on the Supreme Court ruled the 14th Amendment only applied to men not women's emancipation. Americans who value liberty and justice for all are in for a long slog.
9
What will the court look like when neither side of the ideological divide has to walk on eggs to win the favor of the justice in the middle?
Merrick Garland asks the same question.
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@Blue in Green Garland is just waiting for RBG to retire so he gets his shot.
Thank you for this nuanced and thoughtful consideration of the direction of the Supreme Court.
The notion that "history doesn't stop in 2018" is a powerful reminder to those in the media who tinge everything with hyperbole: we would all do well to consider a broader sweep of history in our understanding of the present and to imagine a longer horizon in our predictions about the future.
If the court becomes (more) nakedly political--"honest" in the words of Ms. Greenhouse--in the conservative direction, it is reasonable to predict that the electorate will push back. A generation from now--four of five courts down the road depending on the health and fitness of various Justices--we could end up with a more flexible court or a down-right liberal one if today's power grabs go too far. History has a good record of correcting overreach.
12
Let’s just cut to the chase. No one believes the Supreme Court is impartial. They vote along party lines and therefor are not really a court but an extension of the legislature. It’s gonna be 5:4 voting for the foreseeable future. The Dems ruined the court with their decision to go to a simple majority rule confirmation. Harry Reid ruined democracy in America.
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I guess one just needs to keep repeating realities; Harry Reid did not get rid of the filibuster for Supreme Court Justices. Nor did he block Garland.
For that, you need to go yell at Mitch McConnell.
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@New World If you examine the record, the Justices most likely to vote on party lines are those appointed by the Democratic presidents. Justice Kennedy, the most recent swing vote, was appointed by Regan, a Republican; as was Justice Sandra Day O’Connor. The last swing Justice appointed by a Democratic President was Justice Stanley Reed, appointed by FDR in 1938. So, which side values ideological purity over law? Let the record speak for itself.
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@New World: Stop blaming Reid; he had no choice. The Republicans forced his hand with wall to wall filibustering of every Democratic judicial nominee for DC circuit court. The Republicans then used that as an excuse to do the same on the Supreme Court. To start a fight, just keep throwing punches until your opponent defends himself.
There was hardly a word of protest from the public. How did Republicans get away with it? The mainstream news shows did not inform the public of the Republicans' actions.
2
Things could get a lot worse than they already are.
Barring substantial Democratic successes in the House and Senate races in November -- and Trump’s quick impeachment and removal from office -- Trump's next nominee to the Supreme Court could well be Ted Cruz.
Whatever you think of Trump, you have to admit that he is dead serious about permanently stamping his mean legacy upon the country.
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What will the court look like ? How will Kavanaugh affect it ?
Well, one option would be to just take the guy at his word. He says, he will look at each decision independently and with an eye on constitutionality.
The best solution is to ignore entirely the empty but plaintive wailing, and feigned indignation, of the activist left who seek more Constitution-eviscerating globalists like Stephen Breyer and Ruth Ginsburg.
With luck such appointments will never happen again in the history of this nation, and a travesty like Kelo vs. City of New London will never, ever, be allowed to validate state looting of private citizens.
Breyer's recent piece on international courts should be enough to convince anyone that he will sell US citizens out in order to go down in history as a globalist.
Kavanaugh will probably just do what he is supposed to do: Read a document that lays out easy-to-understand principles, and then, apply them fairly.
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@Objectivist
So, armed-to-the-teeth tribalism is better than some mechanisms of world community?
Institutions that strengthen basic shared human values worldwide and still respect national autonomy may actually still be worth trying for.
Are we and our constitution so weak that only circling the wagons and raising the drawbridge will keep us free?
I don't think so.
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@Philip Lew
Your reply may appear sound to a tweet reader, but falls apart in its entirety under close examination and is in fact quite superficial.
Absurd exaggeration #1: "armed-to-the-teeth tribalism"
I never mentioned tribalism, or armed to the teeth. Reducing options to nothing but ridiculous and extreme endpoints is a cheap tactic, and typical of the Progressive globalists, who cannot convince anyone of anything without first threatening world doom is at hand.
Absurd exaggeration #2:" respect national autonomy"
That's the point. They DO NOT respect national autonomy.
Absurd exaggeration #3: "circling the wagons and raising the drawbridge"
Again, a cheap stunt. Our Constitution is anything but weak. It is the faux democracies of Europe that are the concern: statist in fundamental construction, and riven with class bias and institutionalizing socialist principles.
Using ridiculous hyperbole isn't compelling. But it is typical of the left.
@Objectivist says "just take the guy [Kavanaugh] at his word." Seeing how he has dodged, equivocated, and perjured himself in his confirmation hearings, that is hard to do.
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One thing is certain. The gloves will be off - conservative oligarchs will finally have the activist court they've been working to bring about for decades - and there will be no way to vote them out. It's going to be a great time to be a corporation under the rule of the oligarchy.
It's not going to be a great time to be a worker, a woman, an environmentalist, or any other kind of ordinary American.
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@Larry Roth
"It's going to be a great time to be a corporation..."
Larry, if you're longing for a society, where it's not a great time to be a corporation, you're free to choose from a limited and ever shrinking but very select club: N. Korea, Venezuela, Zimbabwe, Sudan, Syria, and a few others.
P.S. Environmentalists are not a "kind of ordinary Americans." We're way too busy eking a modest living to think about big empty words (though on a personal level, not considering myself an environmentalist - not even sure what it exactly means - my household is 100% recycling and 0 organic waste).
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@Larry Roth I just have to say that there's a lot more of us than there are of them (the rich) and that counts for something. The ordinary Americans will have their say, and they will have their day "in court".
@Larry Roth Only if you consider activism to be the strict interpretation of the Constitution to what it says and what it means. I think you're thinking of the liberal Justices.
Mr Scalia claimed to be an originalist yet in his second amendment decision he put aside history, the dictionary and the the obvious meaning of the second amendment as in article five of the Bill of Rights passed by the house in August of 1789.
Pennsylvania is called the Quaker State because of Quakers not because of motor oil.
Most Quakers respected the injunction to not take up arms and the A well regulated militia referred to the conscription of able bodied men to join the militia (American troops) to defend the newly established nation from European Colonial powers from nations who claimed sovereignty over their overseas possessions.
Scalia was a liar and a scoundrel but a brilliant and lovable Sophist. The survival of the USA depends on ridding the Supreme Court from the likes of Scalia who may be the lawyer you want on your side of the argument are willing to do anything to defend the indefensible.
The second amendment is nothing more than an affirming that Quakers and others who are morally prohibited from taking up arms (weapons of war) will not be punished for their religious beliefs.
11
It is a complete disaster for those of us trying to build a civilized society. The court will now be dominated by ultra right wing, ultra religious fundamentalists - possibly for the next several decades. And this by a "president" who lost the popular vote by a large margin and Senate "majority" that represents a minority of the American People. I see this as total victory by a Republican party that has become so corrupt that they cannot even comprehend trying to understand the needs and wants of the MAJORITY of the American People. They would rather force their dogma onto the majority. That mean ALL the gains towards a civilized society we have had over the last 50 years are in danger. Reproductive rights, civil rights, environmental rights, labor rights, safety rights...everything. The country will become a waste land unless we stop these backwards people.
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When the chain is pulled, flushing the gerrymandered and the electoral colleged from the halls of government. The McConnell stolen seat that was handed to Gorsuch, and the manipulated sham hearings show for Kavanaugh, need to be revisited and corrected.
republicans advertised only what they wanted us to see about Kavanaugh, hiding what they want hidden.
What did you expect from a party that embraces a delusional Trump and the blatant Thief McConnell.
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“An anxious world must know that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”—Justice Anthony Kennedy.
Sir, I don’t think so. I think you accomplished exactly what you and your erstwhile colleagues on the Right have always wanted: a politically polarized Court, one in thrall to corporations and big business and hidden donors and the “religious” Right.
You waffled for most of your 30 years on the court and seemed to take great pleasure and immodest delight in “Surprise!” Your colleagues on the Court could not know exactly where you stood with them on the ideological divide. Please be in no doubt that the law was never a dynamic in which the Court was invested. It has been, since Ronald Reagan’s appointments, ideology and political meanness that has motivated the Court in general, and, your decisions in particular.
An honorable man, no matter how “weary,” as Ms. Greenhouse writers that you were at the end, would have tried to hold on, cementing the center against the politicization of the Court. Most Americans have lost faith in this once-revered institution. We think it’s because you all tried to arrest a turning wheel; that is, force the Constitution to read as it were an oligarch’s or plutocrat’s manifesto for a democratic government.
“We, the People,” deserved better. Sir.
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@Soxared, '04, '07, '13
Extraordinary comment.
I have had these thoughts for years about Kennedy but was never able to articulate them as clearly as you have. I always thought that his "moderation" and "flexibility" were an expression of his vanity and enjoyment of power. That always kept him centerstage. He clearly loved the limelight and enjoyed being courted by eight other justices.
Please keep writing. Your posts are part of my continuing education.
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@Soxared, '04, '07, '13
"Your colleagues on the Court could not know exactly where you stood with them on the ideological divide."
What if he did not "stand on the ideological divide" with anyone but just practiced the law, as he was supposed to by his job description?
Unlike his activist colleagues like Ginsburg and the retired O' Connor.
2
“An anxious world must know that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
What a load of codswallop. If he believed that we wouldn't have lost on Voting Rights & Citizens United.
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A legacy that Trump will leave the Western world; to the extent the US still influences. A Western world, under Progressive leadership, of < '16 shrinking boundaries. Donald Trump was not the cause of the anti-establishment movement across the globe. The cause was Progressive philosophy. If the world is going to unite more ideologically, it likely will be via mercantilism; leaving mythologies to philosophy 101.
1
It doesn't cut against Ms. Greenhouse's general point about the idiosyncratic significance of individual justices, but I doubt that Justice Scalia questioned the right of government to restrict felons convicted of violent crimes from bearing arms. Sure, Justice Kennedy may well have wanted Justice Scalia to throw that passage into Heller, but it was not any kind of a deal breaker for Justice Scalia, from what I personally knew of Justice Scalia. As for Justice Kennedy lacking spunk in his last term, I think that his language in the travel ban case speaks eloquently to another view -- that Justice Kennedy had the spunk to resist the tide against the travel ban, He ruled that the liberties protected by "our" government must first be for our citizens -- and that one of those liberties includes the ability to have a center protected against those who would destroy a center from which freedom might long continue to radiate outward.
Justice Kennedy's legacy is an interesting one that Ms. Greenhouse seems in part to miss. It should not be judged on a partisan scale, but a scale of broader principle. Maybe Kennedy didn't exhibit genius on the scale of some like Story, Holmes, Brandeis and Scalia, but sometimes it's the more modest intellects that can call it right. Compare Kennedy with Taney. Taney was super bright and capable, but had horrific judgment that cost so much carnage when he put his force behind he decision in Dred Scott's case, precipitating the Civil War.
4
It will look like the Supreme Court c. 1955-1979. No walking on eggs during that period.
5
@Wine Country Dude -- Chief Justice Earl Warren worked hard to get strong majorities for critical opinions. It was not automatic or change that produced Brown v Board of Ed. as a 9-0 opinion. If he wasn't walking on eggs, he was being very careful of the opinions of all 9 justices, who were a varied lot then as now.
1
"Justice Kennedy also acted as a brake on the more hard-edge positions"
That is so, but Chief Justice Roberts carried the day for another hard-edge position. The Affordable Care Act vote in 2015. Roberts saved the ACA, and so many have citizens have benefited since.
Chief Justice Roberts in my view will be the new Kennedy.
18
Thanks for this article. I really hope the appointment of Kavanaugh mobilizes the left to create an equivalent of the Federalist society. We need to turn back the tide. We need to promote fair minded judges.
38
The last chief justice of the Supreme Court appointment by a Democrat was appointed by Harry Truman. This has been called, "The Rule from the Dead." There is nothing in the Constitution which carves 9 justices into stone, only that justices serve for life pending "good behavior." If the Democrats ever do manage to seize enough control of Congress their first priority ought to be to pack the Supreme Court; our most political branch of government should reflect new realities in the body politic. There are many ways of packing the court, some which would allow the number to remain at 9 and others which would expand it, over time to dozens or scores of justices. But other countries have such large courts and there is no reason to fear that here for us. The greater fear should be a continuation of a reactionary court undoing the will of the majority.
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@Claudia
Keep changing the rules until your side wins, in other words.
6
@M
Well, that's what the Republicans have done. Without that, filibuster remains and neither Gorsuch nor Kavanaugh get seated.
1
@M
Yes, of course, that's what makes a government capable of changing with the times. As Lincoln said, when we face new problems, we must think anew.
With apologies to the Judge’s Song of G & S xx
I’m would-be Justice Kavanaugh and questions I am dodging
Because in SCOTUS I’m determined I will make my lodging,
Excluding Chinese I agree was not a bad decision,
Although I know that saying so ended in Dem derision.
I don’t think sitting Presidents should ever be indicted
Although they have committed crimes and are viewed as benighted,
It may be Trump with Putin played footsie and was a traitor
But let the man finish his term and he can be charged later.
The ticklish question Roe v. Wade I cleverly avoided
I brought up stare decisis and cleverly employed it,
But when abortion should come up I will apply a hammer
And anyone involved in it will end up in the slammer.
It’s a cinch I’m in,
Despite the din,
I will be the Senate’s choice
Due to Mitch McConnell’s voice
And a dandy Justice, too.
37
I have practiced law since 1984 and have been an amateur Supreme Court historian for even longer. There have been some very good reporters covering the Supreme Court over the decades, but none as thorough and thoughtful as Linda Greenhouse. I never miss reading her columns and never feel that I could have spent my time better on something else. Please keep this up for many more years, Ms. Greenhouse.
Dale Hanks
Beaumont, TX
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