Yves here. Gaius is right (as he has said in past posts) that the appointment of Kavanaugh would be a train wreck. But the Democrats are unserious about fighting in general (despite their fondness for using that word in fundraising pitches) and in particular on judicial picks.
Even though Gaius warns that failing to block Kavanaugh will damage the Democrats on a long-term basis by making them complicit in what results, it’s not hard to see strategists telling themselves the reverse: that a Kavanaugh appointment would be part of the rallying cry for the fall elections.
By Gaius Publius, a professional writer living on the West Coast of the United States and frequent contributor to DownWithTyranny, digby, Truthout, and Naked Capitalism. Follow him on Twitter @Gaius_Publius, Tumblr and Facebook. GP article archive here. Originally published at Common Dreams
In normal times a Supreme Court nominee who lies under oath would be automatically disqualified. These are not normal times.
Under Democratic pressure, Republicans have given almost 200,000 pages of Brett Kavanaugh documents to the Senate Judiciary Committee, but they have not released them to the public. These documents cover, at a minimum, his long period of service in the Bush administration. Whatever else is contained in them is unknown.
Democratic Sens. Cory Booker, Mazie Hirono, and Dick Durbin have selectively released a few of those documents. They show that Supreme Court nominee Brett Kavanaugh was less than honest when he said publicly that Roe v. Wade was “settled law.” It’s clear from the documents he privately thinks Roe can be overturned, and likely that it should be.
The documents released also show he lied under oath during his confirmation hearings for the D.C. Circuit Court “and did so repeatedly.” That in itself is quite a revelation. In normal times a Supreme Court nominee who lies under oath would be automatically disqualified. These are not normal times.
As damning as these revelations are, however, what they’ve released are just a small part of what Democrats possess. Almost 200,000 pages are in their hands. Democrats have these pages; the press and public do not.
If they are truly serious about preventing Kavanaugh’s confirmation, Democrats will release all of this material en masse, and do it now — including the apparent #MeToo letter now held by Senator Feinstein of California. Such a release will not only help to fully inform the public about this critical nomination, but it will also put Republicans under pressure, forcing them to be reactive for a change, not proactive, and leaving them no good choices.
To explain, let’s start with the schedule. The Judiciary Committee has finished hearings and started deliberations. The Supreme Court opens its fall session on October 1, and committee chair Chuck Grassley wants Kavanaugh confirmed by then or “soon after.” He expects a committee vote on September 20 and a floor vote the following week.
This gives Democrats little time to derail a nomination that will arguably change the course of the Court for a generation and radically transform our governmentin the process. According to Bloomberg, confirming Judge Kavanaugh “could create the most conservative Supreme Court since the 1930s.” In context, that means before 1937 when a highly conservative Court struck down almost all New Deal legislation it reviewed. Bloomberg, in other words, anticipates a return to an anti-New Deal judicial era.
The key to stopping the nomination is in the documents. Republicans withheld them precisely because they are afraid of what they contain. These documents were released only to the committee, only after Democrats insisted on seeing them, only after Chuck Schumer, who may have paid a very high price, bargained for them, and even then, delivered just “hours before the hearing,” making careful examination next to impossible.
What’s in those documents clearly frightens Republicans. Releasing them would change the game.
First, a full and sudden document release will create a furor in the press, refocusing the public on the nomination.
Second, a full release will “crowd-source” the research into what they contain. Two hundred thousand pages is a lot to go through, far more than committee Democrats can hope to do on this tight schedule. It’s unlikely Democratic senators, even today, know all that they contain. If Republican have reason to be afraid of their release, that search will not go unrewarded. Prior to being confirmed for the D.C. Circuit, Kavanaugh worked for Ken Starr, was a principal author of the Starr Report, then loyally toiled in the Bush administration through 2006, ending as White House Staff Secretary. If even a part of that history is covered in these documents, they contain a wealth of information — not just about his perjuries, but about years of activity by a man widely considered a far-right ideologue to the core.
Third, if these documents do contain bombs, public rejection of his confirmation will build continuously. If those bombs are sufficiently explosive, if the public is sufficiently shocked by this nominee’s behavior — if Kavanaugh did more than repeatedly perjure himself, but also has a significant gambling addiction problem, for example — he could become repugnant to the mass of voters just as the Senate sits down to confirm him.
If so, Republicans will be faced with a problem, and a tough but simple choice — to brute-force the nomination through the Senate anyway (they do have the votes), or to withdraw his name in favor of someone else, a person who cannot possibly be confirmed before the November election.
If Republicans do force the confirmation anyway, in spite of what these now-hidden documents reveal, they will have achieved a right-wing Holy Grail — complete and unstoppable control of the U.S. Supreme Court far into the next generation.
But to get it they risk a lot. An electoral backlash could start immediately, further influencing the 2018 election, and could last through the 2020 presidential election as well. Already a minority, Republicans would not just be seen as the party of Trump, whom only Republicans like, but as the nakedly brute-force party — an arrogant uncaring elite eager to shove hated decisions down the throat of a public that, let’s not forget, voted in bipartisan numbers in 2016 for anyone they thought would overthrow arrogant elites. Voters were in high revolt in that election. They have not grown more complacent.
Make no mistake, a Roberts-Gorsuch-Kavanaugh court, as radical as their rulings are certain to be, will force an electoral backlash anyway — and once voters realize what’s been done to them, it will be of tsunami proportions. But do Koch-captured Republican office holders want that tsunami to arrive quickly and forcefully starting in November, or to play out much more slowly, preserving their control of government? A tough choice indeed.
Republicans will be forced to make that choice if committee Democrats release all documents they’re now holding. It’s by far their strongest next move. It doesn’t even require a consensus to make that decision, or any unanimity at all — a single Democratic senator, acting bravely and alone, can do it today.
It’s been argued by many that adding Kavanaugh to the Court would be the final brick in the radical right-wing wall — the “one ring to bind them” if you will. If his nomination is not stopped, the nation could cross a constitutional line to a darkness it may never return from. If Democrats don’t put up the strongest possible resistance, using every weapon they have, an electoral darkness may descend on them as well, since they will be — and be seen to be — complicit in the damage to come.
Democrats, release those documents now, and let the public help you help us all.
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Cantwell (D-WA) and Murray (D-WA) only care about getting their bribes from Microsoft and Boeing.
Apparently Sen. Dianne Feinstein is trying to short circuit any such mass release by forwarded an anonymous letter to the FBI that involved “possible sexual misconduct between Judge Kavanaugh and a woman when they were both in high school” (#metoo). That would be back in the early 80s. I have also read that she had refused to let the other members of the Senate Judiciary Committee see this letter which made her even more popular than she already is. I guess that the democrat party donors will accept this dodgy – and eventually unprovable – accusation as that will take away the possibility of a very damaging release of all those documents instead.
The thing that bothers me a lot with #MeToo is the staleness, the festering of blatant and horrific abuse cases for years (until the perp is weakened enough to be taken down, presumably!? And, by the way, what does that tells one about the power relationships and privilege?).
Don’t go via the HR-scumbags. Nail the bastards! Now, while the evidence is hot! The only thing that really scares an elite person is Jail, because Jail means a significant loss of the one thing they cannot just buy: Time!
The same goes for leaking; if you have something really important, leak it! Don’t ask, just slap it on PasteBin! The official systems exist mostly to prevent incriminating records from being damaging to the careers of crazy / unsuitable people who will wield enormous power.
fajensen: Indeed. Feinstein is just playing the eternal game of U.S. High School, which is what so much of culture turns on. Bill and Hill as the presidents of student council.
I’m so old that I’m still waiting for the oh-so-fearless Feinstein to leak the U.S. Senate torture report that supposedly excercised her relationship with Obama.
She’s useless, but like most of the Democratic leadership, she can’t even consider retiring, not when there is so much too steal before they carry her feet first off the Senate floor.
And we all saw how well the Democrats used the same sort of allegations against Clarence Thomas. A party cannot govern based on causing un-ending sex scandals (compare the Trump tape). Believe it or not, the U.S. Constitution has nothing to say about sex scandals. And did any of them ever apologize to Anita Hill, who ended up losing most during the Thomas confirmation?
Feinstein’s unpopularity: do you mean with voters, or with other Democrats on Judiciary?
Her popularity among her peers is more important, yet paradoxically irrelevant. She’s the most powerful Democrat in the Senate, period, and she can ruin any of her colleagues if she chooses. They will not dare defy or stand up to her.
There is the other view that Feinstein would have been even better off simply filing it in her office. This is going to either be a nothing or help Kavanaugh. Anonymity here is your basic disaster as far as an effective charge. I am somewhat amazed that Kavanaugh hasn’t gone on the offensive over this. “Well she hasn’t identified herself so I can’t be sure, but I did go to a party where I was harassed for hours by a young women who just kept suggesting the lewdest possible things to me. I’ll whisper the name to Sen. Feinstein if that would help.”
“He did Bad Things forty years ago, maybe, but no, I won’t tell you what they were.”
I simply don’t understand the fear surrounding the Kavanaugh appointment. But in any case I think that the debate in the Democrat party is actually this: do we release all these documents and try to block Kavanaugh now (knowing that this is pretty much a futile effort) or do we use him as a means to rally our voting base?
I think they will choose the latter – as the goal for now is to win a majority in both the House and Senate as quickly as possible and at any cost.
In my opinion, the strategy that the Democrats (and the so-called Swampy Deep State and Silicon Valley and the MSM and their Oligarghs and Overlords) have in mind is the following: first we remove the President (using the 25th or Impeachment) then we Impeach and replace his Judiciary appointments (including Kavanaugh). The release of the documents will be timed for that moment, not now.
In either case, whether the the Bloods or Crips win the mid-terms, something unprecidented in American history is coming and this is going to end with hand to hand combat in the streets – or martial law.
Everything may end with blood in the streets, but otherwise I believe your scenario is a pie in the sky fantasy. Not just because it ignores the history of the Democratic Party majorities of the last thirty years, but because you aren’t listening to what the party leadership is actually saying and doing.
How do you impeach someone with information you had when you helped vote him into the court? That would require also taking out the people who kept that information from the deliberating body. Do you really believe that Feinstein would or even could strategize a long term plan that includes any form of censure for herself in order to save the Republic? Nope. This is just what we got during the Bush years only more unhinged and hysterical. Faux resistance and pointless posturing.
Do you not think that the Democrats, should they win a majority in the House and Senate, will immediately move to Impeach/25th the President? Is it so far fetched to think that they will try to do the same with Kavanaugh? It would be easy for them, with 24×7 propaganda and Censorship from the MSM, Social Media and Silicon Valley.
After what has been revealed within the FBI, the DoJ, the MSM, Silicon Valley and the Democrat party over the last year or two, no scheme is out of reach.
While it has been a year since Pelosi pooh poohed impeachment outright, she in recent months has said it will not be a priority. And despite your passion for the removal of this president, she took impeachment of a President with far more clear cut high crimes off the table even though that had been one of the big selling points for a Democratic majority back in 2006. Feel free to get fooled again.
Another reality check is there is also that big stumbling block that impeachment is only the indictment.To remove Trump from office you still need a 2/3 majority vote in the Senate. Do you see that being possible?
The resistance is for all that media you mention.
Absolutely not. They don’t want Pence, who would be way worse than Trump and much more electable in 2020.
You need far more than a majority to convict and remove, you need a 2/3rds supermajority in the Senate. The prospect of the Dems achieving that is ludicrous given the Constitution’s built-in bias toward low population states.
“Do you not think that the Democrats, should they win a majority in the House and Senate, will immediately move to Impeach/25th the President?”
No. Not a chance. What past actions from the corporatist Democrat Party
would make this scenarion seem likely to you?
I think the notion that Democrats will even win a majority — in either house of Congress — is pie-in-the-sky.
They have nothing to run on. Nothing. This is the same old, stale crowd — the very ones who trashed the joint — running on the same losing, substance-less, policy-void “platform”. Even on impeachment they try to have it both ways, with powerful voices “outside” calling for it and powerful voices on the “inside” saying it’s off the table. This is a party that is not serious about anything — not about politics, not about policy.
You just don’t win elections with crap like this.
I will take exception to your statement that the Democrat Party is “not
serious about anything…”: they are dead serious about servicing their
Donor Class, at the expense of the many. They do stand for something,
but they cannot publicly talk about it, as I see it.
Democrats are also pretty serious about winning elections, cheating, lying, and allegedly murdering anyone who gets in their way!
A “Blue Wave” is pretty unlikely. The Democrats would have to gain a net 24 or 25 House seats to have even a one-vote majority there.
But even if there were a giant blue tsunami, remember 2006? Dems did win a big House majority, and the public mood was amenable to impeachment, and they did nothing. In fact, keeping the Iraq War going and Bush in office was an explicit strategy to keep the base riled up for the 2008 Presidential election.
Cory Booker and his “Bring it!” response to the threat of expulsion is posturing for 2020. It might even be theater on the part of both sides, with Grassley et al. giving explicit or tacit approval for him to release a few things just for show. I know, kooky conspiracy theories, right? Similar with Harris being all “tough” and maybe others who want to run in 2020. GP is right; the only authentic opposition action would be a total release, which is why it won’t happen. I would love to be wrong.
The best strategy to winning in November would be to release the documents. Even if there was nothing in there that’s a major bombshell, anyone up for SC (or any major position) should be an open book. It would also likely be great for motivating turnout if there is something particularly nasty (perjury would certainly count) instead of pinning hopes on winning the Senate first.
I can see the Democrats playing the “Supreme Court” card in 2020 and citing Kavanaugh as an example of what “could happen again” if we don’t elect a Democrat for President.
The “Supreme Court” card has been so worn out that it will no longer work on me. Will it work on anyone else in 2020? The Democratic Senators will make sure that we all find out.
I think you meant “or does Team Dem use him as a means to fund-raise off their base?”
The donkey show isn’t against late-stage apportion.
Yes, they should release all of the documents. I do believe that Kavanaugh would participate in some rather heinous decisions. However, I don’t think that they would be nearly as binding as others believe. The Supreme Court has only as much legitimacy as the public allows them to have. What would happen if the Court issued a decision that was so unpopular, that it was essentially ignored by the public? Who’s going to enforce it? Would Congress or the Executive, already facing a backlash, step in on the side of the Court, especially considering that they, unlike the Supreme Court, actually has to face voters from time to time? If the Court issues decisions that are too radical, then we might face the possibility that Marbury v. Madison would be nullified by a public that no longer considers Supreme Court decisions to be sacrosanct.
Interesting times, indeed.
You are right that the pubic may choose to ignore decisions, but the Supreme Court has an impact on many levels. Whether or not their decisions are honoured or not comes down to three factors – money, lawyers and force.
With respect to personal rights you make a valid point that the public could ignore decisions that impinge upon them – and they may get away with it. But when it comes to decisions related to government rights, or corporate rights, well that is a different matter. Those are much more difficult for the public to just ignore.
I think you misapprehend how the Court affects laws, and how laws affect reality. If the court reverses Roe v Wade, state governments make abortion illegal and the police start putting doctors and perhaps women themselves in jail. If the Court decides click-wrap arbitration clauses are enforceable, no one can file a class action to hold large corporations accountable. If the Court further dilutes the Voting Rights Act, states will enact poll taxes and “literacy” tests. If the court bring back the substantive due process doctrine, wage and hour and environmental protection laws (among many others) will be struck down by lower courts as unconstitutional “regulatory takings and corporations will be accountable to no one.
Thank you. These changes are what the far right has been yearning for, and working for, for 3 decades now. The ‘public’ will have no say in these outcomes, and a large minority among them would be pleased by much on this list in any case.
Kavanaugh is going to be appointed regardless. I don’t know why we’re even going on about it. Until people who are now in their early 20s to 30s finally dominate the Democratic Party we will not see progress on any of these issues.
Chelsea Clinton is in her early 20s or 30s. So is Neera Tanden. Are they the “younger people” of whom you speak?
Yes, the ever-comforting “demographic winter of the conservatives” argument. I’m over 60, and I’ve been hearing variations of that since I was a wee lad.
> state governments make abortion illegal and the police start putting doctors and perhaps women themselves in jail
The states are already doing all these things. Women are already going to jail for having miscarriages. There are already states with zero abortion doctors.
The Court is already extremely conservative. The remaining liberal judges are in their 80s. I wish people would adjust to the right now reality of the situation instead of positing fear of hypothetical things… that have already happened.
There are issues for which massive citizen non-compliance could work, more or less. But access to abortion when it has been legally banned is a lot more difficult and complicated than, for example, deciding to not wear you seatbelt in defiance of Federal tyranny and thereby risking a ticket.
Bloomberg, in other words, anticipates a return to an anti-New Deal judicial era.
sadly, so do many of the democrats.
Yes, certainly. Many of the democrats want to make sure any future legislative wins from the left are strangled, such as: medicare for all, less support for Israel, less defense spending and war-making, and market regulation with teeth. It’s divide and conquer: what better way to strangle the left than empower the right? Kavanaugh may kill Roe v. Wade, but the upside is it will keep the left occupied for at least a decade, keep them focused on cultural issues (i.e. abortion) so they aren’t meddling in the “free” market or blocking the foreign policy hawks. You might even say, in a particular light, for many Democrats what is the downside of a Kavanaugh Supreme Court Justice?
Thanks for this.
So what happens after the Dems block Kavanaugh? The Fed. Society has vetted everyone on Trump’s “list,” and from what I’ve heard, Kavanaugh is the least-Neanderthal among them. Are the Dems going to keep the seat vacant for 2+ years?
they aren’t, but the republicans would in their position. i think the democrats play the kabuki game to let him through, and then hit everybody who ever contributed to the party up for more donations.
The basic problem is Republicans are Republicans and the Democrats are largely selected from people who were self-funders interested in a title who eventually had access to swankier jobs. Attending swearing in ceremonies in columned buildings is their prize. Letting go of the opportunity to be “part of history” (a second grade level concept of history and civics) isn’t why Democratic elites got into politics.
Well in a sane society they wouldn’t but in this one, where the Republicans completely blocked any nominee Obama put forward and somehow got away with it, they should. Unless of course they don’t mind appearing to be a bunch of sad sack losers who won’t lift a finger to help the general public and are comfortable with losing election after election just as long as the corporate bribes keep rolling in, which seems to be the case.
So yeah, they’ll confirm somebody awful before all is said and done.
The Supreme Court has been corrupt for a long time. Consider Wickard v. Filburn – where the court ruled that the federal government could regulate a farmer’s wheat despite no interstate commerce – in fact no commerce at all! – because it MIGHT affect interstate commerce. This is the “logic” of Gonzales v. Raich, where a woman who grew her own cannabis on her own land for her own personal use was sanctioned because she MIGHT affect interstate commerce.
Not to mention Citizens United, where the court ruled that a fictitious entity, possessing neither body nor speech organs, was nonetheless entitled to protection under the first amendment. I mean, the bill of rights applies to natural persons – Citizens! A fictitious entity is neither.
Clearly these are not stupid people – rulings that are such an affront to logic and common sense can only be the result of corruption and the expansion of federal power, the actions of traitors to the Constitution.
Kavanaugh will fit right in.
Actually, the arguments that he will be worse than the prior right wing appointees, and tip the balance to the far right, is probably accurate. But, he’s on trend with the rest of them.
If gardens are outlawed, only outlaws will have gardens.
“…strategists telling themselves the reverse: that a Kavanaugh appointment would be part of the rallying cry for the fall elections.”
The beatings will continue until morale improves…
“We let this guy get on the court, now turn out and vote for us because he is horrible!” – DNC mailer, November 2018
The most important thing to keep in mind about the Supreme Court of the United States is that it brought you the Dred Scott, Plessy, and Korematsu decisions. Human rights? Please.
The Supreme Court is all about protecting property: And usually not your property. The idea that corporations are persons is just the tip of the Court as a moral and political calamity.
Just because the Warren Court existed, and just because William O. Douglas and some other rights-minded justices served, doesn’t get us away from the true problem with the Supreme Court: The few cases that get sent there, the better. Which is why Roe v. Wade is in continuous jeopardy.
In short, the execrable little Sammy Alito is the typical Supreme Court justice. You notice that Thurgood Marshall hasn’t “been repeated.” Wouldn’t want another Thurgood Marshall on the Court when we can have liberal-ish media creations like RBG and Anthony Kennedy, right?
The modern Democrat Party (sic) simply will not engage in an important political fight they might lose. The 44th President is the avatar of this state of utter fecklessness. It is much better for Clinton Obama Schumer & Pelosi LLC to be the junior partners of the Establishment and reign in Hell than to win and be responsible to and for the people.
Welcome to the Court, Justice Kavanaugh.
I believe Kavanaugh (or a similar replacement) will be confirmed.
The Dems can re-play the Clarence Thomas hearings chaired by Joe Biden.
Clarence Thomas, a conservative selected by Bush Senior as “the best man for the job” who had the important quality of being black so the Democrats would have a more difficult time opposing him.
Now the Repubs don’t even have to find a black conservative.
Coach Kav blubbers through his acceptance speech thanking everyone, all his family and friends for standing by him, and avows his deep patriotism for his country promising to carry on in the tradition of George W. Bush who was so confused on 9/11 that he temporarily stopped reading Dr. Seusse. And Brett and his wife stumbled out of the West Wing into the sunlight only for security reasons. He promises to tolerate the uppity Kamala Harris even though he is deeply convinced that god invented women so all men could have a ready scapegoat. And just for the record he loves his church too and emphatically denies he was never raped by a priest or a bishop. He gulps back some tears; grins like an adolescent and exits the podium.
LOL. Most would agree that Ol’ George was no Einstein but that’s a bit harsh.
“Release the documents”
And everyone falls into line, playing TINAs Monte, never demanding government documents should always be available, free online. That nobody should be able to hide them, D or R, Legislative or Executive.
And like Pence would replace an ousted Trump nobody has ever suggested denying Kav a seat would in any way get we the peeps a better nominee next time.
First of all, there is no such thing as “settled law” on the US Supreme Court as, shall we say, a propositional structure situated somewhere in the Platonic world of legal ideas which can never be changed. “….in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.” Justice Louis Brandeis as cited in Wikipedia. Otherwise America would still be living in the world of Plessy vs Ferguson. So Kavanaugh’s saying that Roe is “settled law”, even though he may believe it wrongly decided and want to overrule it, is not perjury in so far as the expression “settled law’ does not mean something that assumes to a kind of metaphysical legal permanence. Something like Roe can be considered “settled law” and still be subject to change – by guys like Kavanaugh.
Second, Kavanaugh is going to be confirmed. Period. The only way he won’t be, in the memorable words of Gov. Edwin Edwards, is if he’s found to have been in bed with a live boy or a dead girl. (Notice in implicit homophobia of that standard – but I digress.). And if he is, they’ll just activate Kavanaugh’s clone out of the Mike Pence judicial nominee spawning farm. And if the Republicans keep the Senate, as they probably will, there’ll be another Kavanaugh and another one after that.
In the meanwhile, the Dems, if they go nuclear in the Senate, which they won’t, will only throw the Deplorables into a Fury, ie, they’ll go out and vote.
Kavanaugh and his ilk are the wages paid for the sin of trying to force Hillary down the throats of American voters after Democratic and liberal enthusiastic support of eight dead years of national decline under Obama. So pay the price now, and figure out how to win presidential elections in the future.
The Democratic Senators are not serious about preventing Kavanaugh from reaching the Supreme Court. Actually, the Democratic Senators are serious about making sure that Kavanaugh is confirmed for a seat on the Supreme Court.
Based on that basic fact, I will predict that the Democratic Senators will not release a single damning document. ( And in fact, I now see that Unna has him/her-self predicted that Kavanaugh will be confirmed, so I need not even have offered my own prediction to that effect.
I will only say that if the Democratic Senators have to sink to depths of sewage lagoon depravity to destroy any chance of Kavanaugh being blocked, they will sink to those depths.
The Democrats will go as far down beneath and below the call of duty to make sure that Kavanaugh is confirmed.)
Nominations have consequences. That’s what I would say to any Pink Pussy Hat Snowflake-for-Hillary who complains about voters flipping from Obama to Trump or from Obama to not voting. Nominations have consequences. Nominations will have consequences in 2020 as well.
Since a longer comment did not publish, maybe this shorter comment will publish to a stripped down version of the same effect.
The Democratic Senators all support Kavanaugh for the Supreme Court. Those who say they don’t, are lying. The proof of their lying is that they will unanimously prevent the instant total release of these documents. The Democratic Senators will support their Republican political class comrades in keeping the documents suppressed, because they secretly support their Republican political class comrades in appointing Kavanaugh to the Supreme Court.
That’s a specific prediction. Events will prove me right or wrong. If the Democratic Senators cause the whole batch of documents to be released instantly at once, you can all point at me and laugh.