The confirmation vote is is done.
I won’t hold it against anyone who feels stunned and numbed by the travesty in the Senate, and needs to take some time to scream, cry & regroup. (Just don’t forget the midterms!)
Yet soon enough, those on the progressive side will need to look beyond the next election to the long work of coping with other aspects of what Kavanaugh’s arrival on the court portends.
And yes, the outlook is mostly bad; terrible, in fact. And it was a terrible prospect even before any of us knew who Christine Blasey Ford or Deborah Ramirez and Julie Swetnick were.
Further, it’s about what we knew, or could have known, before the explosion, that I want to deal with here.
I don’t mean to diminish for a minute the magnitude of the institutional violence done to women this week, especially survivors of direct assault and abuse. Yet the list of legal catastrophes whose likelihood will climb with Kavanaugh’s ascension was already long, and portends massive negative impact on many other segments of the population; all of us, really.
Further, there was an excellent, but now forgotten overview of this in the opening session of the hearings, presented by Rhode Island Senator Sheldon Whitehouse.
I don’t know why Whitehouse isn’t better known. Maybe it’s Rhode Island’s mini-size (at barely 1200 square miles, it makes Vermont — 8 times as large– look huge; or maybe its due to the state’s mostly Democratic voting record.) Perhaps it’s because he is not running for president.
Whatever; Whitehouse was a prosecutor and state attorney general before he came to Washington. He knows how to make a case succinctly and trenchantly. And he made this detailed pre-rapist case against Kavanaugh in the first round of opening statements on September 4.
After him, the supposed ace debater Ted Cruz sounded shrill, small and tinny. Cruz’s butt-kissing only underlined the power of Whitehouse’s statement, a masterwork of plain, well-informed, vivid, carefully angry and occasionally profane argument.
If you read the earlier post about Whitehouse’s statement, his brief is worth revisiting. A month ago it was a possibility; it’s now about to become imminent.
Whitehouse did not focus solely on Kavanaugh; rather he spotlighted the bloc that the newcomer will solidify, what Whitehouse rightly called “The Roberts Five.” That’s a phrase we should remember and make clear to the public. We’ll let Whitehouse pick it up here (I have added the emphasis, having heard the talk first, which he delivered with much passion.)
Whitehouse: When is a pattern evidence of bias?
In court, pattern is evidence of bias all the time; evidence on which juries and trial judges rely, to show discriminatory intent, to show a common scheme, to show bias.
When does a pattern prove bias?
That’s no idle question. It’s relevant to the pattern of the Roberts Court when its Republican majority goes off on its partisan excursions through the civil law; when all five Republican appointees — The Roberts Five, I’ll call them — go raiding off together, and no Democratic appointee joins them.
Does this happen often? Yes, indeed.
The Roberts Five has gone on 80 of these partisan excursions since Roberts became chief.
There is a feature to these eighty cases. They almost all implicate interests important to the big funders and influencers of the Republican Party. When the Republican Justices go off on these partisan excursions, there’s a big Republican corporate or partisan interest involved 92 percent of the time.
A tiny handful of these cases don’t implicate an interest of the big Republican influencers — so flukishly few we can set them aside. That leaves 73 cases that all implicate a major Republican Party interest. Seventy-three is a lot of cases at the Supreme Court.
Is there a pattern to those 73 cases? Oh, yes there is.
Every time a big Republican corporate or partisan interest is involved, the big Republican interest wins. Every. Time.
Let me repeat: In seventy-three partisan decisions where there’s a big Republican interest at stake, the big Republican interest wins.
Every. Damned. Time.
Hence the mad scramble of big Republican interest groups to protect a “Roberts Five” that will reliably give them wins — really big wins, sometimes.
When The Roberts Five saddles up, these so-called conservatives are anything but judicially conservative.
They readily overturn precedent, toss out statutes passed by wide bipartisan margins, and decide on broad constitutional issues they need not reach. Modesty, originalism, stare decisis [the value of precedent], all these supposedly conservative judicial principles, all have the hoof prints of the Roberts Five all across their backs, wherever those principles got in the way of wins for the Big Republican interests.
The litany of Roberts Five decisions explains why big Republican interests want Kavanaugh on the Court so badly that Republicans trampled so much Senate precedent to shove him through; so let’s review the litany.
What do big Republican interests want? Well, first, they want to win elections.
What has The Roberts Five delivered?
Help Republicans gerrymander elections: Vieth v. Jubelirer, 5-4, license to gerrymander.
Help Republicans keep minority voters away from the polls: Shelby County, 5-4 and Bartlett v. Strickland, 5-4. And Abbott v. Perez, 5-4, despite the trial judge finding the Texas legislature actually intended to suppress minority voters.
And the big one: help corporate front-group money flood elections — if you’re a big special interest you love unlimited power to buy elections and threaten and bully Congress. McCutcheon, 5-4 counting the concurrence; Bullock, 5-4; and the infamous, grotesque 5-4 Citizens United decision (which belongs . . . on the Court’s roll of shame).
What else do the big influencers want?
To get out of courtrooms. Big influencers hate courtrooms, because their lobbying and electioneering and threatening doesn’t work. In a courtroom, big influencers used to getting their way have to suffer the indignity of equal treatment.
So The Roberts Five protects corporations from group “class action” lawsuits: Walmart v. Dukes, 5-4; Comcast, 5-4; and this past term, Epic Systems, 5-4.
The Roberts Five helps corporations steer customers and workers away from courtrooms and into mandatory arbitration: Concepcion, Italian Colors, and Rent-a-Center, all Roberts Five. Epic Systems does double duty here: now workers can’t even arbitrate their claims as a group.
Hindering access to the courthouse for plaintiffs generally: Iqbal, 5-4.
Protecting corporations from being taken to court by employees harmed through pay discrimination, Ledbetter, 5-4; age discrimination, Gross, 5-4; harassment, Vance 5-4; and retaliation, Nassar, 5-4. Even insulating corporations from liability for international human rights violations: Jesner, 5-4.
Corporations aren’t in the Constitution; juries are. Indeed, courtroom juries are the one element of American government designed to protect people against encroachments by private wealth and power. So of course The Roberts Five rule for wealthy, powerful corporations over jury rights every time — with nary a mention of the Seventh Amendment.
What’s another one? Oh, yes. A classic: helping big business bust unions. Harris v. Quinn, 5-4; and Janus v. AFSCME this year, 5-4, overturning a 40-year precedent.
Lots of big Republican influencers are polluters. They like to pollute for free.
So of course The Roberts Five delivers decisions that let corporate polluters pollute. To pick a few: Rapanos, weakening wetland protections, 5-4; National Association of Home Builders, weakening protections for endangered species, 5-4; Michigan v. EPA, helping air polluters, 5-4; and, in the face of emerging climate havoc, there’s the procedurally aberrant 5-4 partisan decision to stop the EPA Clean Power Plan.
Then come Roberts Five bonus decisions advancing a far-right social agenda: Gonzalez v. Carhart, upholding restrictive abortion laws; Hobby Lobby, granting corporations religious rights over the health care rights of employees; NIFLA, letting states deny women truthful information about their reproductive choices—all 5-4, all the Republicans.
Add Heller and McDonald, which reanimated for the gun industry a theory a former Chief Justice once called a “fraud”; both decisions 5-4.
This year, Trump v. Hawaii, 5-4, rubber stamping President Trump’s discriminatory Muslim travel ban.
And in case Wall Street was feeling left out, helping insulate investment bankers from fraud claims: Janus Capital Group, Inc., 5-4.
No wonder the American people feel the game is rigged.
Here’s how the rigged game works: big business and partisan groups fund the Federalist Society, which picked Gorsuch and now Kavanaugh. As White House Counsel admitted, they “insourced” the Federalist Society for this selection. Exactly how the nominees were picked, and who was in the room where it happened, and who had a vote or a veto, and what was said or promised, is all a deep dark secret.
Then big business and partisan groups fund the Judicial Crisis Network, which runs dark-money political campaigns to influence Senators in confirmation votes, as they’ve done for Gorsuch and now Kavanaugh. Who pays millions of dollars for that, and what their expectations are, is a deep dark secret.
These groups also fund Republican election campaigns with dark money. The identity of the big donors? A deep dark secret.
Once the nominee is on, the same business front groups, with ties to the Koch Brothers and other funders of the Republican political machine, file “friend of the court,” or amicus briefs, to signal their wishes to the Roberts Five. Who is really behind those “friends” is another deep dark secret.
It has gotten so weird that Republican justices now even send hints back to big business interests about how they’d like to help them next, and then big business lawyers rush out to lose cases, just to get them up before the friendly [Supreme] Court, pronto. That’s what happened in Friedrichs and Janus.
The U.S. Chamber of Commerce is the biggest corporate lobby of them all. It’s the mouthpiece for Big Coal, Big Oil, Big Tobacco, Big Pharma, Big Guns, you name it—and this year, with Justice Gorsuch riding with the Roberts Five, the Chamber won nine of the 10 cases it weighed in on.
The Roberts Five since 2006 has given the Chamber more than three-quarters of their total votes. This year in civil cases they voted for the Chamber’s position nearly 90 percent of the time.
People are noticing. Veteran court-watchers like Jeffrey Toobin, Linda Greenhouse and Norm Ornstein describe the court as a delivery service for Republican interests:
Toobin has written that on the Supreme Court, “Roberts has served the interests . . . of the contemporary Republican Party.”
Greenhouse has said, “the Republican-appointed majority is committed to harnessing the Supreme Court to an ideological agenda.”
Ornstein described, “the new reality of today’s Supreme Court: It is polarized along partisan lines in a way that parallels other political institutions and the rest of society, in a fashion we have never seen.”
And the American public knows it, too. The American public thinks the Supreme Court treats corporations more favorably than individuals, compared to vice versa, by a 7-to-1 margin.
Now, let’s look at where Judge Kavanaugh fits in. A Republican political operative his whole career, who’s never tried a case. He made his political bones helping the salacious prosecution of President Clinton, and leaking prosecution information to the press.
As an operative in the second Bush White House, he cultivated relationships with political insiders like nomination guru Leonard Leo, the Federalist Society architect of Kavanaugh’s court nominations. On the D.C. Circuit, Kavanaugh gave more than 50 speeches to the Federalist Society. That’s some auditioning.
On the DC Circuit, Kavanaugh showed his readiness to join The Roberts Five with big political wins for Republican and corporate interests: unleashing special interest money into elections; protecting corporations from liability; helping polluters pollute; striking down commonsense gun regulations; keeping injured plaintiffs out of court; and perhaps most important for the current occupant of the Oval Office, expounding a nearly limitless vision of presidential immunity from the law.
[Kavanaugh’s] alignment with right-wing groups who came before him as “friends of the court”? 91 percent.
When big business trade associations weighed in? 76 percent. This is what corporate capture of the courts looks like.
There are big expectations for [Kavanaugh]. The shadowy dark-money front group, the Judicial Crisis Network, is spending tens of millions in dark money to push for [his] confirmation. They clearly have big expectations about how [he]’ll rule on dark money.
The NRA has poured millions into [his] confirmation, promising their members that [he]’ll “break the tie.” They clearly have big expectations on how you’ll vote on guns.
White House Counsel Don McGahn said, “There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin.” Big polluters clearly have big expectations for [him] on their deregulatory effort.
Finally, [he] come[s] before us nominated by a President named in open court as directing criminal activity, and a subject of ongoing criminal investigation. [Kavanaugh] displayed expansive views on executive immunity from the law. If [he is] in that seat, the White House has big expectations that [he] will protect the President from the due process of law, that should give every Senator pause. [But of course, it didn’t.]
Now, from me, not Whitehouse, a word of advice: don’t try to absorb all this in one gulp. Let it settle; bookmark the Whitehouse background papers (and maybe this blog post), and come back to them. After all, all this — all this! — is in addition to preserving rape culture, and shoring up the Elite Boys-Will-Be-Boys Protection Plan, and reinforcing the precedent that telling lies under oath by guys with the right skin color & connections are okay.
It’s a lot to take in. If you add up the agenda that Whitehouse has sketched out, plus Kavanaugh’s vow of revenge (“what goes around comes around”) it amounts to a full-fledged counter-revolution. Catch your breath. Let this settle for a bit. (But don’t forget the midterms.)
Then we better get down to the business of figuring out how to fight back and preserve as much as we can in the meantime. It will be a long slog. Big protests in Washington, though they will have their place, will not get it done. Meaningful resistance will take thought, homework, expertise, creativity and planning.
UPDATE: News reports indicate that Kavanaugh was sworn in by Chief Justice John Roberts shortly after the Senate voted. This suggests that with The Roberts Five now reconstituted, the notoriously workaholic jurist can get down to work on their lengthy agenda.
Either that, or he may be off to have some beers, possibly too many, with his almost as notorious friend Ralph.
If this post is of value to you, please pass it on.