Thursday, July 12, 2018

The President is above the law and can do no wrong and we know this because ...

… the President’s Supreme Court nominee, Brett Kavanaugh, told us so.

A pair of essays in the New Yorker provides the grounding for fears of what Brett Kavanaugh as Supreme Court justice could do to the nation.

Jeffrey Toobin traces Brett Kavanaugh’s Journey to Becoming a Supreme Court Nominee.

No one becomes a Supreme Court Justice by accident, but Brett Kavanaugh has worked with seeming extraordinary calculation for the moment that arrived this week, when President Trump announced his nomination to the high court. The journey has proved extravagantly successful for Kavanaugh, but it’s far less clear that his ascension will be good news for the rest of us.

These first thing to note is that Kavanaugh plays rough. He worked on the Clinton impeachment.

In a memo to [Ken] Starr, he proposed that Clinton be asked the following questions, among others, before the grand jury: “If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying?" [Scriber won’t burden you with the second.]

Other than to say I told you so.

Worse, much worse, Kavanaugh treats the presidency almost like a monarchy.

… Kavanaugh, in his opinions and his extrajudicial work, has cultivated a broad conception of Presidential power. In a notable case from late 2011, which I wrote about the following March, a three-judge panel of the D.C. Circuit voted, two to one, to uphold President Obama’s health-care reform, the Affordable Care Act. Kavanaugh dissented, primarily because he felt that the lawsuit was premature. His sixty-five-page opinion included guidance for any Republicans who might follow President Obama in office.“Under the Constitution,” Kavanaugh wrote, “the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.” This is an extraordinary view. It is courts—not Presidents—who “deem” laws unconstitutional, but not, apparently, in Kavanaugh’s view. President Trump’s sabotage of the A.C.A. comes right from Kavanagh’s approach to the law.

… In a law-review article from 2009, Kavanaugh said that Presidents should not only be free from the possibility of indictment while in office but should also be allowed to avoid questioning from law-enforcement officials. He wrote that Congress should “consider a law exempting a president—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.” …

John Cassidy explains Why It’s Right to Be Mad About Kavanaugh and the Supreme Court.

The first reason to be angry is that every Republican will line up behind Trump’s pick no matter how dangerous that pick is to our democracy. We’ve already lost two “moderate” Republican senators and the real fight has not even started – three if you count our own talk-but-don’t-walk Jeff Flake.

… Republicans will still have a two-vote advantage in the Senate, when the tie-breaking vote of Vice-President Mike Pence is taken into account. On Tuesday, Susan Collins, of Maine, one of the few G.O.P. senators whom Democrats had been hopeful of picking off, released a statement that lauded Kavanaugh’s credentials. Another Democratic target, Lisa Murkowski, of Alaska, also indicated that she was comfortable with Trump’s choice.

But there is even more at stake than preventing another rightward lurch on the high court. As Kavanaugh prepares to make his way to the Capitol, and, most probably, to a lifetime appointment in the old courthouse behind it, we are witnessing the dénouement of an outrageous power grab by a radicalized political party, its wealthy backers, and a rogue President. It is essential to remember this wider context.

At the risk of giving yourself a headache, consider some counterfactuals. Absent the Supreme Court’s 5–4 ruling, in 2000, under Chief Justice William Rehnquist, to halt the Florida recount and allow the election of a Republican President who lost the popular vote, John Roberts and Samuel Alito might not be sitting on the Court today. If, in 2016, Mitch McConnell, the Senate Majority Leader, had adhered to precedent and allowed filibusters on the nomination of Merrick Garland, Gorsuch might well not be a Justice, either. And but for the quirks of the Electoral College nullifying Hillary Clinton’s almost three-million-ballot margin of victory in the popular vote, Kavanaugh would still be a relative unknown.

If these points sound like the complaints of sore losers, they are. But Democrats, Independents, and anybody else who cares about the functioning of American democracy have good reason to be sore. There is no majority of voters out there clamoring for a ban on abortion, restrictions on collective bargaining, roadblocks to legal claims against big companies, or the purging from the electoral rolls of voters who skip a couple of elections. These are the concerns of smaller groups, with strong ties to the Republican Party, whose interests will be disproportionately represented.

That, Toobin explains, is the result of a quirky Electoral College and a gerrymandered Senate.

This isn’t how democracies are supposed to work. But as Vox’s Ezra Klein pointed out a couple of days ago, the United States is “not-quite-a-democracy.” Rather than adhering to the commitment to equality contained in the Declaration of Independence, it relies on an antiquated electoral system that weighs votes in a manner that, in the modern era, has put Democrats at a structural disadvantage. …

By slowly fashioning a ruling conservative bloc on the Supreme Court, the Republican Party has carefully exploited the biases and shortcomings of the political system. Ultimately, that is what makes the prospect of Kavanaugh’s ascension so objectionable. It wouldn’t just cement in place a reactionary and unrepresentative majority. It would be the latest act in an anti-democratic (small “d”) heist.

And we will be facing the next steps in the transformation from a republican to a royalican nation.

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