Sunday, July 1, 2018

Autocracy or Democracy - The Battle for America, Part 1.

The stakes are high. This country faces a choice between a traditional democracy and a shift to an autocracy.

The next battle in Trump’s War Against Women

Trump and his co-conspirators in congress are waging war against the America as we once knew it. The next, looming battle is over a Supreme Court nominee who, the betting odds predict, will be a hard-line conservative commited against women’s reproductive rights.

Sen. Elizabeth Warren predicts that Trump Supreme Court Nominee “Will Criminalize Abortion And Try To Punish Women”

SEN. ELIZABETH WARREN (D-MA): Let’s talk about what we know for sure is at stake and some of the questions that the nominee is going to face. Donald Trump has already said that he’s going to pick somebody who has been prescreened off a list that that was put together by a group whose number one job—an extremist group—is to make sure that Roe versus Wade gets overturned.

This means that he’s looking for a nominee who will criminalize abortion and try to punish women. That’s what’s at stake in this one. And then from there, so much more. This is about health care cases that are percolating up through the courts, including the one we know about right now about pre-existing conditions. This is about the swing vote in our environmental protections, whether or not giant corporations are going to have the right to poison the water and foul the air. This is about workers’ rights and whether or not the Supreme Court is going to stay on the path of trying to bust unions. This is about voting rights, whether or not democracy fundamentally works in this country. This is one of those moments where Justice Kennedy has been the swing vote. Look, I’ll be blunt, he swung a lot of times in a direction I don’t like, but he’s been a swing vote. He was the one who helped stand up for equal marriage. All of that is now at risk—whether he, Donald Trump, gets to replace the swing vote with somebody off a pre-approved extremist list.

You think that charge of an “extremist list” is too harsh? Well, I’ve got something more for you. Buckle up!

Likely front-runner is champion of presidential power …

… in the worst way imaginable.

ABC News reports Trump to announce his pick to replace Kennedy on Supreme Court after July 4.

President Donald Trump told reporters on Friday that he would announce his choice to replace retiring Justice Anthony Kennedy on July 9 – a choice that he will likely make from a previously released list of 25 potential nominees.

Trump made the comments aboard Air Force One and added that may meet with two contenders in Bedminster, New Jersey this weekend. He said he will meet with six or seven candidates but has narrowed his list down to five people, including two women, before announcing his nominee. He said it was a group of “highly talented, very brilliant, mostly conservative judges.”

ABC News then lists the likely top five. The one thought by many to be the top contender on that list is Brett Kavanaugh. The Chicago Tribune provides this reason why we should be very, very worried; Top Supreme Court prospect has argued presidents should not be bothered by probes, lawsuits.

U.S. Circuit Judge Brett Kavanaugh, a former clerk for Supreme Court Justice Anthony Kennedy who is viewed as one of the leading contenders to replace him, has argued that presidents should not be distracted by civil lawsuits, criminal investigations or even questions from a prosecutor or defense attorney while in office.

Kavanaugh had direct personal experience that informed his 2009 article for the Minnesota Law Review: He helped investigate President Bill Clinton as part of independent counsel Kenneth Starr’s team and then served for five years as a close aide to President George W. Bush.

Having observed the weighty issues that can consume a president, Kavanaugh wrote, the nation’s chief executive should be exempt from “time-consuming and distracting” lawsuits and investigations, which “would ill serve the public interest, especially in times of financial or national security crisis.”

If a president were truly malevolent, Kavanaugh wrote, he could always be impeached. [Scriber: nonsense! That kind of argument was made by Kennedy in the Citizens United and Hawaii cases.]

Mother Jones has a detailed bio on Kavanaugh: Trump’s Supreme Court Frontrunner Is the “Forrest Gump of Republican Politics”. Brett Kavanaugh is a reliable conservative and the consummate Washington insider. Here is some of it.

As soon as Supreme Court Justice Anthony Kennedy announced his retirement Wednesday, people started taking bets on whom President Donald Trump would nominate to replace him—sometimes literally. Online betting isn’t legal in the United States, but an Australian online bookmaker, sportsbet.com.au, posted its odds for the leading Supreme Court candidates, and the site—like the Washington chattering class—pegs Brett Kavanaugh as the favorite.

So who is Kavanaugh? The 53-year-old currently sits on the US Court of Appeals for the DC Circuit. Elevating him to the Supreme Court wouldn’t add much diversity to the high court, but it would add a reliably conservative vote.

After the Supreme Court ruled in [George W.] Bush’s favor, essentially awarding him the presidency, Kavanaugh landed a coveted spot in the White House counsel’s office, where he helped Bush select judicial nominees. Eventually, he became one of them. In 2003, Bush nominated Kavanaugh to a seat on the influential DC Circuit, often considered a stepping stone to the Supreme Court. Three current justices have served there, as does Merrick Garland, former President Barack Obama’s nominee for the high court whose confirmation was blocked by Senate Republicans.s

Democrats aggressively opposed Kavanaugh’s nomination, in part because of his political résumé, but also because he had never tried a case and had very little experience with criminal law. [Sen. Dick] Durbin observed during Kavanaugh’s confirmation hearing that he was nominated with “less legal experience than virtually any Republican or Democratic nominee in more than 30 years. Of the 54 judges appointed to this court in 111 years, only one—Kenneth Starr—had less legal experience. That is a fact.”

Lawyer and court watcher Adam Feldman recently wrote on his blog Empirical SCOTUS that in his 12 years on the DC Circuit, Kavanaugh has penned opinions “almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases.” Kavanaugh made a name for himself as a staunch opponent of the Obama administration’s environmental agenda. His dissents in cases involving the Environmental Protection Agency often seemed to sway the Supreme Court.

He has supported the Trump administration’s efforts to prevent a pregnant immigrant girl from obtaining an abortion, supported the use of military commissions to keep Guantanamo Bay prisoners out of federal courts, and attacked Sen. Elizabeth Warren’s pet project, the Consumer Financial Protection Bureau. In 2016, he wrote a 101-page majority opinion for a three-judge panel decrying the agency’s “massive, unchecked” power and predicting that the Supreme Court would ultimately find its existence unconstitutional. The decision struck down the part of the law requiring that the president have cause before removing the agency’s director and that would have allowed the president to fire the director at will. But the decision was overturned a year later by the full DC Circuit. In a dissent in that case, Kavanaugh made an impassioned argument for protecting the rights of financial services providers, an argument dismissed by the majority as an “unmoored liberty analysis” that failed to take into account the individual liberty of the victims of those financial services corporations.

The future Supreme Court docket may have special relevance to Trump, and that could work in Kavanaugh’s favor. Trump, after all, has suggested that he has the power to pardon himself, a theory that’s never been tested but one that might become less theoretical should special counsel Robert Muller’s investigation into Russia’s meddling in the 2016 election ensnare Trump in a criminal case. The Supreme Court could ultimately decide whether Trump is right about the extent of his pardon power.

Kavanaugh seems likely to be a supporter of broad presidential powers. In 2011, the DC Circuit upheld the constitutionality of the Affordable Care Act, in a prelude to what the Supreme Court would later do. In a dissent, Kavanaugh suggested that the president could simply declare a law unconstitutional and then refuse to enforce it. “Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional,” Kavanaugh wrote, “even if a court has held or would hold the statute constitutional.”

It’s even worse than that. The subject of New Yorker’s John Cassidy’s email yesterday was “Who will Trump pick for the Supreme Court”. Cassidy cites the LA Times article Judges Brett Kavanaugh and Amy Coney Barrett are leading candidates for Supreme Court seat. Here is Cassidy’s summary.

Trump said that two of the people he is considering are women. Reports have identified these candidates as Amy Coney Barrett, a former Notre Dame law professor whom Trump recently appointed to the Seventh Circuit Court of Appeals, in Chicago, and Allison Eid, a former member of the Colorado Supreme Court who now holds the seat on the Tenth Circuit Court of Appeals, in Denver, which Neil Gorsuch held before he ascended to the Supreme Court. Since neither of them have served for very long in their current jobs, appointing them to the Supreme Court would be something of a gamble. A more experienced pick, and one that would immediately garner the support of many conservatives in Washington, would be Brett Kavanaugh, a federal judge who since 2006 has served on the U.S. Court of Appeals for the District of Columbia Circuit, and who worked in the White House counsel’s office during the George W. Bush Administration. Kavanaugh once clerked for Kennedy, but people who know both men say they don’t necessarily share the same legal views. Kavanaugh “is much more conservative in his approach to law than Justice Kennedy,” Justin Walker, a University of Louisville law professor who clerked for both Kavanaugh and Kennedy, told the Los Angeles Times. “There is no guesswork with Judge Kavanaugh. He is extremely predictable.”

And that predictability should scare the sh!t out of you if you care about everything progressive.

What can we do? What can you do? Some suggestions follow in Part 2.

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