The Scripted Confirmation of Brett Kavanaugh

Consider the possibility that this is all a pre-planned script whereby Jeff Flake is depicted as the Honest Principled Man who ultimately gives everyone else cover to vote for Kavanaugh https://t.co/IqL3b020mh

— David Sirota (@davidsirota) September 30, 2018

by Gaius Publius

After you come down from praising of Jeff Flake's heroism (or his cowardice in the face of sexual assault victims) consider the following, from an interview with Flake in the Atlantic:

Coppins: So, you were motivated mainly by preserving institutional credibility?

Flake: Two institutions, really. One, the Supreme Court is the lone institution where most Americans still have some faith. And then the U.S. Senate as an institution—we’re coming apart at the seams. There’s no currency, no market for reaching across the aisle. It just makes it so difficult.

Flake's stated goal in insisting on an additional FBI check is to add credibility to the process so that the credibility of the government (which will put and contain Kavanaugh on the high court bench) can be maintained. An additional FBI check also takes away the strongest Democratic Party argument as presented in the hearings: "Why won't you submit to an FBI investigation?" and it gives the Joe Manchins of the world something to say in mitigation after they vote to confirm. 

Flake is worried, and rightly so, that if Kavanaugh is confirmed by raw power alone, without the blessing of the FBI, the Supreme Court will be seen as illegitimate. As I wrote earlier in "Anthony Kennedy and Our Delayed Constitutional Crisis," the Court is teetering on that perception already:

With swing-vote status comes great responsibility, and in the most consequential — and wrongly decided — cases of this generation, O'Connor and Kennedy were the Court's key enablers. They 

• Cast the deciding vote that made each decision possible
• Kept alive the illusion of the Court's non-partisan legitimacy

[...]

The second point above, about the illusion of the Court's legitimacy, is just as important as the first. If the Court were ever widely seen as acting outside the bounds of its mandate, or worse, seen as a partisan, captured organ of a powerful and dangerous political minority (which it certainly is), all of its decisions would be rejected by the people at large, and more importantly, the nation would plunged into a constitutional crisis of monumental proportions.

We are in that constitutional crisis now, but just at the start of it. We should have been done with it long ago. Both O'Connor and Kennedy are responsible for that delay.

I'm not alone in think along these lines. Juan Cole at Informed Comment agrees, offering two ways that Kavanaugh's confirmation, added to Trump's potential firing of Rod Rosenstein, could lead to a "Great American Apocalypse."

The Supreme Court is already a captured agent of the Republican Party. But thanks to "swing vote" justices like Anthony Kennedy, it's merely seen as "divided." That will change.

If Brett Kavanaugh is added to a captured Court via a process that itself is seen as captured, then joins 5-4 decision after 5-4 decision to a) further increase the power of the minority Republican Party via highly restricted voting rights; b) implement radical Koch anti-government ideology by removing, for example, regulatory power from the Executive Branch; and c) enable the freakish dreams of the most rightwing fundamentalists in the country (imagine if contraception were only available on a state-by-state basis) — I think that will tear the country clean apart.

I also think Jeff Flake agrees, and I think he thinks that if he gets the FBI to sign off on Kavanaugh first, he can head that outcome off. He's wrong, of course, but he'll be a lobbyist by the time anyone finds out. His future will be secured, even as ours will be very much more in doubt.

What Happens Next?

What happens next in the Kavanaugh confirmation process is anyone's guess, since the public and its anger are in play. But if I were to place bets on what just the political actors will do, here's the scenario:

• The FBI will issue a blatantly and politically manipulated report that neither confirms nor contradicts the charges against Brett Kavanaugh.
   
• Republicans will declare Kavanaugh vindicated and move the nomination to a vote at the earliest opportunity.
   
• Joe Manchin and Jeff Flake will both vote to confirm, providing 51 Yes votes and leaving one slot open for a single Republican No.
   
• Susan Collins and Lisa Murkowski will decide between themselves who gets to vote No and save what's left of her reputation and career. The woman at most risk will take that slot.

• Since Susan Collins is under the most fire from hometown voters right now, I expect her to take a "principled stand" and find it in her conscience to vote not to confirm Brett Kavanaugh "for the sake of the women of this country" — all in a losing cause.

Which means:

• Kavanaugh will be seated on the Supreme Court for life, giving it the equivalent of five Antonin Scalias for the next two decades at least.
   
• When a critical mass of voters has had it with the decisions of a fully captured, radical-Republican Court, the country will come apart, just as it did 165 years ago, but not in the same way. 

Read Lincoln's Cooper Union speech. Addressing the people of the South, Lincoln said: "Your purpose, then, plainly stated, is that you will destroy the Government, unless you be allowed to construe and enforce the Constitution as you please, on all points in dispute between you and us. You will rule or ruin in all events."

In his era, a radical, intransigent, uncompromising "rule or ruin" minority drove the nation into civil war. That same "rule or ruin" minority is back — abetted this time by the very very wealthy — and they're doing it again. Kavanaugh is the next step in their putsch, their capture of the organs of the state, and unless the public derails his confirmation, it will succeed.

Nice work, Mr. Flake. You too, Mr. Manchin. I wish I had a gift for you equivalent to the one you're giving us. If I did have such a gift, it would arrive at your door tomorrow.

GP
 

Trump's Supreme Court Seat: The Art of the Steal

Andrew Kreig

(Andrew Kreig is the editor of the Justice Integrity Project and he was good enough to do this very relevant guest post for us)

Did U.S. Supreme Court Justice Anthony Kennedy's sudden resignation June 27 stem from corrupt motives?

That question looms even as most court watchers focus on the conventional analysis of evaluating Kennedy's proposed successor, U.S. District of Columbia Circuit Judge Brett Kavanaugh, 53, whom President Trump announced Monday evening on July 9.

No matter what hoopla, drama and distraction Trump planned around the selection the possibility of Deep State corruption deserves our attention-- and as thorough an investigation as society's (mostly) timid and toothless watchdogs can muster.

That's particularly so when the high stakes involve an activist ultra-right court majority likely to protect the current president and his cronies from an ongoing corruption probe, with stage apparently set for this appointment by relationships forged with hundreds of millions of dollars in suspicious money disbursed among the current players.

That kind of attack on democracy by corrupt elites, one of the definitions of a "Deep State," is as bad or worse than the court rulings and precedents that a new justice may help create. The intrigue is heightened because Republicans arguably "stole" a seat-- and their current majority-- by failing to schedule hearings on any Democratic nominee during the last year of President Obama's second term.

There are and will be many mainstream critiques of Kavanaugh and his worthiness for confirmation, with the basics already summarized before the announced by the specialist SCOTUSblog in a profile by its editor Edith Roberts entitled Potential nominee profile: Brett Kavanaugh.

But this column takes the scrutiny to a deeper level, given the high stakes of the process and the repeated gaming of the system by Republicans and their appointees who are typically described as "conservatives" but should be described instead as radical right activists who want a result-oriented federal court system to enact their agenda, no matter what bromides they utter during charade-like confirmation hearings.

The track record of this and other recent court appointments provides a solid basis for scrutiny, if not outrage.

In this instance, suspicions of the process arise in part because of the vast financial transitions between Deutsche Bank and LNR Property, entities associated with the Trump and Kennedy families, as well as the clear-cut benefit for Republicans and Trump by rousing their base with a new court appointment before the mid-term congressional elections in November. Kennedy had already hired court clerks for the coming term, suggesting that he did not expect to retire until recently.

Trump could also benefit in rulings from a younger and more partisan justice than Kennedy on what are likely to be increasingly serious legal actions by Special Counsel Robert Mueller III against Trump Administration players.

On Monday, Republican Justice Clarence Thomas' wife Virginia showed yet again her side's utter contempt for non-partisan judicial norms when she used her Twitter feed to defend U.S. Rep. Jim Jordan from accusations that Jordan, as Ohio State University's assistant wresting coach, had helped enable a team doctor's sexual predations on team members.

Jordan, an Ohio Freedom Caucus leader running to become House Speaker, is one of Trump's major GOP defenders against the corruption probe by Special Counsel Robert Mueller III. Virginia "Ginni" Thomas is a longtime hard-right Republican activist who years ago showed her corrupt proclivities (See the 2011 Los Angeles Times blockbuster, Clarence Thomas failed to report wife's income, watchdog says) by trying to start a consulting business in advance of her husband's (and Kennedy's) vote to destroy the nation's federal campaign financing system in the all-Republican 5-4 Citizens United v. Federal Election Commission decision.

Kennedy has been part of such presidential puppetry before, most obviously with his vote in the 5-4 Bush-v. Gore decision in 2000 that stopped that year's presidential vote recount in Florida. With court precedent to anyone but ultra-right partisans, Kennedy thus awarded the U.S. presidency (by an unprecedented court fiat enacted exclusively by Republicans) to GOP nominee George W. Bush, thus altering American history in enduring ways.

With that background, we explore more fully below the suspicious activity between the Trump and Kennedy families in this sequel to New GOP High Court Threatens Massive Public Pain, our previous analysis of recent court decisions and the potential civic harms stemming from Kennedy's resignation.

The Basic Suspicions

Public awareness of an unusually close relationship between the Trump and Kennedy families first arose from New York-region financial reporters more than a decade ago between Justice Kennedy's son, Justin, and his work with real estate entities owned by Trump and the family of his son-in-law Jared Kushner. Last year, the Capitol Hill publication Politico noted a brief, chummy and seemingly innocuous semi-private exchange in 2017 between Trump and the associate justice during Trump's presidential address to Congress in February of that year.

Kennedy's resignation last month prompted several bold reporters and commentators to revisit the multiple relationships involved and raise alarms. Meanwhile, partisans and apologists for conventional order have been quick to dismiss any concerns even though no one as yet from any viewpoint can produce definitive evidence of either corruption or innocence from what are complicated financial and personal relationships.

We examine these matters below, with an extensive appendix of relevant news reports.

Kennedy Family's Background

Justice Anthony Kennedy is a native Californian who attended Stanford University as an undergraduate and earned his law degree from Harvard. He won confirmation to the Supreme Court on a 97-0 vote and took his seat 31 years ago.

At first glance, he would not seem likely to have developed any kind of personal relationship with the brash New York entrepreneur and celebrity-turned-politico Donald Trump before the latter's election to the presidency in 2016.

But children of the wealthy and well-connected have a way of finding each other in a country increasingly divided into the haves and have-nots. The most notable relationships arose between Kennedy's son who entered the banking business and those businesses in the Trump-Kushner circle that needed money for their far-flung and often over-extended plans.

New York Times reporter Maggie Haberman, whose mother has worked at a public relations company representing the Trump Organization, was one of the first to suggest the relevancy of these relationships in the context of Kennedy's resignation.

Her front-page story co-authored with Times Supreme Court reporter Adam Liptak on the day of Kennedy's resignation June 28 was headlined Inside the White House’s Quiet Campaign to Create a Supreme Court Opening. Its subtitle was "President Trump singled him out for praise even while attacking other members of the Supreme Court."

The story chronicled how "The White House nominated people close to him to important judicial posts. And members of the Trump family forged personal connections." Fairly far down, their story contained this intriguing paragraph about one of Justice Kennedy's sons, Justin, a high-level executive of a Germany-based bank:

During Mr. Kennedy’s tenure, Deutsche Bank became Mr. Trump’s most important lender, dispensing well over $1 billion in loans to him for the renovation and construction of skyscrapers in New York and Chicago at a time other mainstream banks were wary of doing business with him because of his troubled business history.

That same day, on June 28, investigative reporter and public affairs commentator Wayne Madsen was one of the first to take suggest dark suspicions. Before getting to that we'll draw (with his permission) from his introduction of the players, which is drawn from his column Reports of Trump collusion with Gorsuch and Kennedy to pack the Supreme Court  on the Wayne Madsen Report, a subscription-only investigative site.

"There are multiple reports coming out of congressional and media circles in Washington, DC," Madsen wrote, "that Donald Trump colluded with Supreme Court Associate Justice Neil Gorsuch and the sons of Associate Justice Anthony Kennedy to convince Justice Kennedy to retire. Kennedy's announcement that he is retiring sent shock waves through the country, with fears that Trump's replacement will provide a solid 5-4 court majority that will help Trump roll back several fundamental constitutional rights.

More importantly, a 5-4 Republican majority on the court is seen by Trump as protecting him from any indictment or recommendation for impeachment arising from the Justice Department investigation of Trump and his associates being conducted by special counsel Robert Mueller.

Madsen continued:

If Trump colluded with Gorsuch and Kennedy to "pack the court" in Trump's favor, that would represent impeachable offenses by both Trump and Gorsuch. The Supreme Court's independence from interference by the other two branches of the federal government-- executive and legislative-- is sacrosanct under the Constitution.

The 81-year old Kennedy was not only pressured to retire by his Trump-appointed court colleague, Gorsuch, but also by his son, Justin Kennedy, a personal friend of Donald Trump, Jr.

Madsen, a former Navy intelligence officer, NSA analyst and Chief Scientist at the defense contractor Computer Sciences Corp., is more familiar than most political reporters with high technology and its uses in intelligence and related fields. He continued:

Justice Kennedy also saw pressure to step down from his other son, Gregory Kennedy, a Stanford Law School classmate of Peter Thiel, Donald Trump's high-tech adviser.

Thiel's Palantir Technology, which has several U.S. intelligence and law enforcement contracts-- including one with Immigration and Customs Enforcement (ICE) for identifying immigrants in the United States for deportation-- is partnered with Gregory Kennedy's former firm, which is ominously called Disruptive Technology Advisers, LLC and which is billed as a "merchant bank" in Los Angeles.

Disruptive Technology was founded by Alexander Davis, the son of oil billionaire Marvin Davis. Marvin Davis once owned 20th Century Fox and was a partner of Marc Rich, the international sanctions buster who lived in Switzerland until his death in 2013. Gregory Kennedy is now the managing partner for Advection Growth Capital in New York that is involved in the privatization of several operations of the National Aeronautics and Space Administration (NASA).

Gregory Kennedy also was on the Trump Administration Transition Team that evaluated personnel and policies for NASA after the Trump Team's 2016 election victory, yet another of the huge conflicts of interest in Washington politics that are presumptively legal in our system.

Kennedy Son Excused?

A day later, on June 29, MSNBC morning anchor and NBC correspondent Stephanie Ruhle (shown at right in a file photo) drew on her eight years work at the German-based Deutsche Bank to address reports that Justin Kennedy had been involved in the bank's massive loans to Trump companies more than a decade ago. "I worked I worked with Justin Kennedy," Ruhle wrote on Twitter. "I read the stories-- reached out to some former colleagues for their reaction Here’s some broader context/perspective-- Neither of which fit in 240 characters."

She then published on Twitter two brief videos, Part I and Part II, that quoted three senior Deutsche bank officials (albeit not by name) as saying the younger Kennedy was not involved in the Trump loans, which reportedly totaled some $600 million. A number of reader comments argued, by contrast, that the readers were generally familiar with that kind of financing and that the story deserved far more in-depth digging.

Deutsche Bank's Little-Reported History

The Deutsche Bank relationship with the Trump companies carries several rare if not unique characteristics that could be relevant to a Supreme Court confirmation at this time:

• The huge amounts, particularly because the six-time bankrupt Trump (who still keeps his tax returns secret) was not regarded as a good credit risk;
• Illegal conduct by bank employees generating some $425 million in New York State fines and penalties for illegally laundering an estimated $10 billion via Russian, United Kingdom and other European sources;
• Suspicions, not fully documented, that Deutsche Bank crimes included widespread money laundering money from Eastern European sources;
• Deutsche Bank's special history, which includes acquisition of the historic Alex. Brown investment bank whose relationships through the decades (including with the affiliated firm Brown Brothers Harriman, home to Bush Family patriarch Prescott Bush) had made it a key part of the American financial elite or, as some might say, "Deep State." Alex. Brown CEO and Board Chairman A.B. "Buzzy" Krongard, for example, went from running Alex. Brown and to becoming executive director of the Central Intelligence Agency in March 2001 before the 9/11 attacks.

To mention this history, much of it virtually unknown to Americans in the current run-up to the Supreme Court confirmation process, is not to suggest that any of it can be proven relevant to that process-- at this point. The importance for now is merely to show that high-level banking at the Deutsche Bank and Trump levels is an elite endeavor and not at all like getting a home mortgage at a Main Street bank.

Blunt Commentary

On July 2, Jesse Kornbluth published on the liberal site Salon a report entitled Donald Trump, Anthony Kennedy and the “boy” at Deutsche Bank: Not just about the money. He is a well-connected editor of the cultural concierge site HeadButler.com, a frequent columnist for the Brookings Institution and a former contributing editor for Vanity Fair and New York magazines.

His column began: "There’s a tangled web linking the Trump and Kennedy families. But financial corruption isn’t the whole story."

Kornbluth, author of a book about the disgraced junk bond financier Michael Milken, bluntly described potential collusion before Kennedy's resignation and the possible consequences for the main players. Most legal commentators report about the court and its decisions from deferential academic, political or advocacy standpoints that give every benefit of the doubt to potentially sinister actions by the justices.

Instead, Kornbluth wrote:

As a way of looking at a presidency that is enamored of every possible felony-- self-dealing, conflicts of interest, emoluments, collusion with foreign governments and domestic corporations-- crime-breeds-crime is a reasonable way to look at any Trump-related event.

But the resignation of a Supreme Court justice? Because Trump cares so much about money, that’s been suggested. And there’s smoke: the links between Trump, Kennedy and Kennedy’s son Justin. In years past we’d call that the League of White Men, taking care of their own, behind the scenes, The Way It Is. Today we tend to call it something else: collusion...

But let’s consider the bottom line: For Donald Trump, the only real issue of interest is... himself. If a 4-4 Court had to rule on a difficult question-- Does the president have the power to pardon himself?-- it might not go well for Trump.

'Dirty Money'

Kornbluth, who once held the title of editorial director at AOL among other accomplishments, was just getting started. He continued:

What started the speculation about dirty money connecting Trump, Kennedy and his son is the revelation that Kennedy and Trump have had a longstanding relationship through their children and their children’s success. We knew about Trump’s dealings with Deutsche Bank, the only bank willing to do business with him. (It’s also, perhaps not coincidentally, the bank that seems to have the longest illegal relationship with laundered Russian money.

In January 2017, it was fined $425 million by New York regulators to settle allegations that it helped Russian investors launder as much as $10 billion through its branches in Moscow, New York and London.) But we’re just finding out about the Trump relationship with Justin Kennedy, the justice’s son, who worked at Deutsche Bank for a decade, rising to the post of Managing Director and Global Head of CMBS [Commercial mortgage-backed securities] Trading and Structuring of Deutsche Bank Securities Inc.

Reportedly, Trump personally pressed Gorsuch, who once clerked for Kennedy, to ask the associate justice to retire. Whether or not Trump told Gorsuch that the move was to ensure that the president would remain immune to the court upholding any moves by Mueller, Gorsuch, as a constitutional expert with experience working at the court, would have known what the request meant.

Gorsuch would have also known that by cajoling him to pressure a Supreme Court justice to retire, Trump's actions were not only unconstitutional and illegal, but also exposed himself to charges of judicial malfeasance and potential impeachment.

However, the columnist Kornbluth accepted at face value the reporting of MSNBC's Stephanie Ruhle that Justin Kennedy had nothing to do with the huge Deutsche Bank loans to Trump years ago, despite several comments on Ruhle's site from readers who claimed expertise and who predicted that only an investigation could sort out the facts.

Yet Kornbluth stressed that Justin Kennedy went from Deutsche Bank to lead as a co-CEO a boutique investment company called LNR Property that provided a huge bail out to Trump's son-in-law Jared Kushner and his family in their ruinous investment in 666 Fifth Avenue. He cited a 2012 New York Times column:

The Kushners' purchase in 2007 of 666 Fifth Avenue for a record price of $1.8 billion is considered a classic example of reckless underwriting. The transaction was so highly leveraged that the cash flow from rents amounted to only 65 percent of the debt service.

As many real estate specialists predicted, the deal ran into trouble. Instead of rising, rents declined as the recession took hold, and new leases were scarce. In 2010, the loan was transferred to a special servicer on the assumption that a default would occur once reserve funds being used to subsidize the shortfall were bled dry.

Instead of foreclosing on the 39-story building, which stretches from 52nd Street to 53rd Street, the lenders agreed last month to reduce the principal and defer some of the interest payments on the interest-only loan and extend its maturity for two years, until February 2019.

Kornbluth cited two other writers, C'Zar Bernstein and Gabe Rusk, writing in The Medium in March 2017 about the deal:

• There was a direct business relationship between LNR and Kushner Companies at the time Justin Kennedy and Jared Kushner were both CEOs. Even the future President was aware of the deal and commented on its respective merits.
• In 2011, the year in which some of these negotiations took place, Justin Kennedy for the first time was ranked on the New York Observer’s 100 Most Powerful People in New York Real Estate at #36. Donald Trump clocked in at #12. At that time, the New York Observer was owned by Jared Kushner.

Kushner's 666 Fifth Ave:'All-Time Stinker'

"The 666 Fifth Avenue deal," Kornbluth continued, "is generally regarded as the all-time stinker in New York commercial real estate. What did LNR see as the upside? Better question: Was there any upside? As we know, 666 Fifth Avenue went badly for the Kushners, so badly that they were scrambling for a partner. Where might one be?

These transactions, their history and their implication are far beyond the scope of one column to document, even one that draws on many others. Additionally, we can in no way summarize here the history, even the recent history, of self-dealing by Supreme Court justices, especially when the recipients of jobs and benefits are their spouses, children and cronies.

The Justice Integrity Project, among others, has attempted to do so on occasion as in the case of Clarence Thomas and his wife even after a their 2011 scandal that began this way with a report in the Los Angeles Times: Clarence Thomas failed to report wife's income, watchdog says, Supreme Court Justice Clarence Thomas failed to report his wife's income from a conservative think tank on financial disclosure forms for at least five years, the watchdog group Common Cause said Friday.

But, at least up to now, the Supreme Court and other establishment institutions have protected the system from scrutiny and other accountability in the name of privacy and constitutionalism.

Next Steps

Tonight, most of relevant public attention will focus on the identity of Trump's nominee and the political battles over confirmation. Yet those angered by the overall system and particularly by the apparent conflicts of interest by the Kennedy and Trump families might want to take the confirmation to the public with a much broader critique than simply this nominee.

We shall certainly continue to do so with our reporting at the Justice Integrity Project, a non-partisan site that opposed the confirmation of Obama's Democratic nominee Elena Kagan because of her obvious conflicts, most notably in seeking to enforce as Solicitor General the Justice Department's frame-up on corruption charges of former Alabama Gov. Don Siegelman.

We conclude with a last quotation from Kornbluth, who had traced out financial conflicts of the Kennedy and Trump clans in his long July 2 column in Salon:

"Although there’s clearly more to this story than an 81-year-old justice who was ready to retire," he wrote. "I’m thinking Anthony Kennedy’s farewell gift to Trump isn’t just right-wing control of the Supreme Court for the rest of most of our lives. For once, it may not be about the money. The real prize here may be a gold-plated Get Out of Jail Free card."

The Deal With The Devil Is Paying Off For Evangelical Voters

Did you watch Meet The Press Sunday? The highlight was Alexandria Ocasio-Cortez but Chuck Todd had another interesting guest as well, Maria Canwell, a standard issue Democrat from Washington (state and DC). Cantell had a warning for senators in regard to Trump's not-as-yet named replacement for Anthony Kennedy. "My colleagues," she said, "on both sides of the aisle know that this vote could be one of the key votes of their entire career. If they vote for somebody who's going to change precedent, it could be a career-ending move."

Remember, during his hate-filled campaign, Trump repeatedly said he would appoint nominees who would overturn Roe v. Wade, one of the top reasons over 80% of evangelicals voted for him and still support him, despite his obvious personal flaws.

On CNN yesterday, Susan Collins (R-ME) said she wouldn't support anyone who is against the Roe v. Wade. How will she know? By remembering what Trump said during the campaign? "I would not support a nominee who demonstrated hostility to Roe v. Wade because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law."

CNN's top legal analyst, Jeffrey Toobin, also writes for the New Yorker and this week, he explained how How Trump's Supreme Court Pick Could Undo Kennedy's Legacy, although I think Kennedy already did that by retiring before the midterms. A conservative, Kennedy was considered the swing vote on the court because he departed from right-wing orthodoxy on some key issues: gay rights, affirmative action, the death penalty, and, in Toobin's opinion, "most notably, abortion rights. In the 1992 case of Planned Parenthood v. Casey, Kennedy voted to uphold Roe v. Wade, and he remained a reluctant but steady advocate for maintaining the precedent."

The whole purpose of Trump’s Supreme Court selection process has been to eliminate the possibility of nominating someone who might commit Kennedy’s perfidies of moderation. The activists from the Federalist Society and the Heritage Foundation who supplied the President’s list of twenty-five prospective nominees are determined to tear down the monuments, on select issues, that Kennedy has built. Their labors have already produced one soaring success, in the confirmation, last year, of Neil Gorsuch. His extremism has exceeded that of his predecessor Antonin Scalia and equalled that of his colleague Clarence Thomas, the Justice with whom he has voted most often.

Yet it’s far from certain that the public wants the kinds of rulings that a brazen conservative majority would produce. So the nominee and his or her supporters will avoid spelling out the implications of this judicial philosophy. As with Gorsuch, the nominee will be supported with meaningless buzz phrases: he or she will be opposed to “legislating from the bench” and in favor of “judicial restraint.” Like Gorsuch, the nominee will rely on airy generalities rather than on specific examples. It’s all the more important, then, to articulate in plain English what, if such a nominee is confirmed, a new majority will do.

It will overrule Roe v. Wade, allowing states to ban abortions and to criminally prosecute any physicians and nurses who perform them. It will allow shopkeepers, restaurateurs, and hotel owners to refuse service to gay customers on religious grounds. It will guarantee that fewer African-American and Latino students attend élite universities. It will approve laws designed to hinder voting rights. It will sanction execution by grotesque means. It will invoke the Second Amendment to prohibit states from engaging in gun control, including the regulation of machine guns and bump stocks.

And these are just the issues that draw the most attention. In many respects, the most important right-wing agenda item for the judiciary is the undermining of the regulatory state. In the rush of conservative rulings at the end of this term, one of the most important received relatively little notice. In Janus v. afscme, a 5–4 majority (including Kennedy) said that public employees who receive the benefits of union-negotiated contracts can excuse themselves from paying union dues. In doing so, the Justices overruled a Supreme Court precedent that, as it happens, was nearly as old as Roe v. Wade. (Chief Justice John Roberts, who has made much of his reverence for stare decisis, joined in the trashing of this precedent, and will likely join his colleagues in rejecting more of them.) The decision not only cripples public-sector unions-- itself a cherished conservative goal-- but does so, oddly enough, on First Amendment grounds. The majority said that forcing government workers to pay dues violates their right to free speech. But, as Justice Elena Kagan wrote in a dissent, this is “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” She added, “Speech is everywhere-- a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long.”

Anthony Kennedy didn’t spend his entire career on that road, and there is, in his best opinions, the kind of decency and empathy that characterized many of the moderate Republicans who once dominated the Court, such as Justices Potter Stewart, Harry Blackmun, and Sandra Day O’Connor. Kennedy’s words at the conclusion of the Obergefell opinion deserve to be his judicial epitaph. “It would misunderstand these men and women to say they disrespect the idea of marriage,” he wrote. “Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” But the Constitution grants only those rights that the Supreme Court says it grants, and a new majority can and will bestow those rights, and take them away, in chilling new ways.

Snopes: "A June 2018 news report accurately described the controversial reality of children facing deportation proceedings without legal representation."

Anthony Kennedy and Our Delayed Constitutional Crisis

Image credit: Mike Thompson / Detroit Free Press

by Gaius Publius

Today’s announcement that Kennedy is retiring only consummates his abdication of responsibility. Kennedy has chosen to let a deeply dangerous president and his allies steer a badly damaged ship out to sea. Is it fair to judge an eighty-one year old man so harshly? Yes, it is.

–Yascha Mounk, Slate

Like "swing vote" justice Sandra Day O'Connor before him, "swing vote" justice Anthony Kennedy has been one of the worst Supreme Court jurists of the modern era.

With swing-vote status comes great responsibility, and in the most consequential — and wrongly decided — cases of this generation, O'Connor and Kennedy were the Court's key enablers. They 

• Cast the deciding vote that made each decision possible
• Kept alive the illusion of the Court's non-partisan legitimacy

Each of these points is critical in evaluating the modern Supreme Court. For two generations, it has made decisions that changed the constitution for the worse. (Small "c" on constitution to indicate the original written document, plus its amendments, plus the sum of all unwritten agreements and court decisions that determine how those documents are to be interpreted).

These horrible decisions are easy to list. They expanded the earlier decision on corporate personhood by enshrining money as political speech in a group of decisions that led to the infamous Citizens United case (whose majority opinion, by the way, was written by the so-called "moderate" Anthony Kennedy); repeatedly undermined the rights of citizens and workers relative to the corporations that rule and employ them; set back voting rights equality for at least a generation; and many more. After this next appointment, many fear Roe v. Wade may be reversed.

Yet the Court has managed to keep (one is tempted to say curate) its reputation as a "divided body" and not a "captured body" thanks to its so-called swing vote justices and the press's consistent and complicit portrayal of the Court as merely "divided."

Delaying the Constitutional Crisis

The second point above, about the illusion of the Court's legitimacy, is just as important as the first. If the Court were ever widely seen as acting outside the bounds of its mandate, or worse, seen as a partisan, captured organ of a powerful and dangerous political minority (which it certainly is), all of its decisions would be rejected by the people at large, and more importantly, the nation would plunged into a constitutional crisis of monumental proportions.

We are in that constitutional crisis now, but just at the start of it. We should have been done with it long ago. Both O'Connor and Kennedy are responsible for that delay.

O'Connor's greatest sin, of course, was as the swing vote in Bush v. Gore, the judicial coup that handed the 2000 election to George W. Bush and Dick Cheney. It was also widely reported that on election night at a dinner party "Sandra Day O'Connor became upset when the media initially announced that Gore had won Florida, her husband explaining that they would have to wait another four years before retiring to Arizona." (More on that here.)

Consider: If the Supreme Court were part of coup that makes a losing presidential candidate the winner, and makes that ruling along partisan and preferential lines that can't be judicially defended, how could any decision issued by that court be deemed legitimate afterward?

Yet here we are, still publicly asserting the Court's legitimacy, whatever people think privately, and still watching in horror as decision after decision dismantles old constitutional agreements and erects new ones.

The Legacy of Anthony Kennedy

Kennedy will be praised for his so-called "moderate" or "case-by-case" ideology, bolstered largely by decisions protecting gay rights. Perhaps that will be his legacy.

But in the main he has been horrible, with a record of ideological and indefensible votes capped by his landmark decision in the Citizens United case. Enough has been written about that to make repetition here unnecessary. As noted, Kennedy not only provided the crucial "swing vote," he also wrote the majority opinion, which in essence, reduced the broad and complex sweep of both public corruption and the appearance of corruption only to provable, documented, evidence-based quid pro quo exchanges. This is beyond naïve and touches itself the broader meaning of corrupt.

If justice exists in the world, his legacy will be this: First, in giving to Donald Trump the ability to hand a person of relative youth the fifth and deciding Republican vote on the Court, Kennedy has changed the Court for a generation. After his successor is confirmed, no good thing will come from the Court for the next 20 years, and much, perhaps fatal, damage will be done.

Second, thanks to Kennedy's handing his seat to Trump, the next new justice will be unable to claim the propagandistic "swing vote" mantle held by O'Connor and Kennedy, which fact should destroy the Court's perceived, illusory legitimacy forever. The full consequences of loss of legitimacy will be considered elsewhere, but suffice it to say that when a nation's highest court is not just captured, but widely seen to be captured, a constitutional crisis is at hand. 

This is the legacy Justice Anthony Kennedy, and though he may bask for the next few months in the glory of his pronounced moderation, the awful truth, to his enduring shame, should follow him to the grave — and be printed on it.

The Crisis to Come

Let's close by quoting Anthony Kennedy in the Citizens United case, the most bizarre defense of a decision in the modern era. (There have been many bizarre decisions — the "money is speech" decision in Buckley v. Valeo is among the worst in the last 50 years — but none has been as bizarrely defended by the Court as Citizens United.)

Remember that in Citizens United the Court, building on the decision in Buckley, ruled that the First Amendment prohibits Congress from passing any law limiting so-called "independent expenditures" by corporations and unions to political campaigns. (Of course, those independent expenditures are almost never independent at all, but that's another problem.)

To the objection that unlimited campaign contributions would foster widespread public corruption, Kennedy countered with this absurdity (quote taken from Jonathan Cohn here). In his majority opinion, Kennedy wrote:

[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. …

The fact that speakers [i.e., donors] may have influence over or access to elected officials does not mean that these officials are corrupt. …

The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.

Each assertion above strains belief that the writer is sane. Consider those assertions in simpler language:

1. Gifts of money don't corrupt.
2. Gifts of money don't look corrupt.
3. Influence over politicians doesn't corrupt.
4. Voters will have no problem with nakedly bought elections.

The first three are either plain nonsense, in which case Kennedy is unqualified to sit on the bench at all, or nonsense in service of ideology, in which case Kennedy is a political actor on an already captured Court.

The obvious explanation is the latter.

But the worse of his assertions may be the fourth, which is also patently wrong. That assertion, which says in effect "and people will let us get away with all these changes," has set the final table for the constitutional crisis to come — the one that questions the legitimacy of the Court itself and with it, perhaps, our entire political process.

That crisis, if it does come, will tear the national fabric as fundamentally as any of the earlier three — the crisis of 1776, the crisis of 1860, and the Great Depression. We're now much closer to that point than anyone with a microphone or media column inches will say. But you did hear it here. Stay tuned.

GP
 

Will Gerrymandering As A Problem Plaguing American Democracy Disappear On Tuesday?

When I first saw North Carolina state Senator Jeff Jackson's tweets (above), ny eye was drawn to the graphic. Maybe because of the hues or the simplicity of the forms, it rang some Fernand Léger bells in my mind. Turned out, though, that Jeff was talking about gerrymandering, not art criticism. As the editors of the NY Times pointed out on Friday, the Supreme Court could solve the gerrymandering mess on Tuesday. Yes, this Tuesday! They can go a long way towards de-regging the political system... but will they? "Politicians," they wrote, "keep themselves, and their party, in power by redrawing the geographical boundaries for legislative seats in the states and in Congress."

They can be very open about doing this. In North Carolina, where the statewide vote is often close, a Republican lawmaker was asked why the G.O.P.-led Legislature drew district maps that gave Republicans 10 congressional districts and Democrats only three. He responded, “Because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

All map drawing is political, but at its most extreme, it strikes at the heart of representative democracy. By letting politicians pick their voters rather than the other way around, this practice, known as partisan gerrymandering, corrodes the relationship between lawmakers and their constituents. It also discourages bipartisanship and undermines the public’s trust in government.

The Supreme Court has repeatedly steered clear of solving this age-old problem. But on Tuesday, in a case that could transform the American political landscape, the justices will hear arguments over whether, and how, partisan gerrymandering can be reined in.

Why is this so hard? Almost no one defends the practice. James Garfield, who served in Congress before becoming president and had benefited from gerrymandering, called it “evil.” President Ronald Reagan called it a “national scandal” in 1987-- “anti-democratic” and “un-American.” John Kasich, the Republican governor of Ohio, said last year that it remains the “biggest problem we have.” Polls show that seven in 10 Americans oppose it

Yet even though the Supreme Court has said a political gerrymander may be so extreme that it violates the Constitution, it has never struck one down because the justices have not been able to agree on how much partisanship in map drawing is too much, or even how to measure it.

If any case could convince them that it’s time to step in and find a solution fast, it’s the one they’re hearing on Tuesday: Gill v. Whitford, a lawsuit out of Wisconsin that offers a stark lesson in just how distorted the map-drawing process has become in an era of sophisticated mapping technology and intense political polarization.

In 2010, Republicans won unified control of Wisconsin’s government for the first time in years. They were determined not to lose it anytime soon, so they turned the decennial redistricting process, which began in 2011, into a clandestine partisan operation. They set up a “map room” at a Republican-allied law firm, used refined data analyses to draw new, Republican-friendly district lines, and invited only Republican lawmakers to come in and see their new districts-- after they signed nondisclosure agreements.

It worked. In 2012, the first election using the new maps, Republican candidates won 48 percent of the vote, but 60 of the state’s 99 legislative seats. The Democrats’ 51 percent that year translated into only 39 seats, yet two years later, when the Republicans won the same share of the vote, they ended up with 63 seats-- a 24-seat differential. In other words, Republicans had figured out how to draw maps to lock in their legislative majority no matter how many, or few, votes they received.

This is the opposite of how democracy is supposed to work, as a Federal District Court in Wisconsin found in striking down the maps last year under both the First and 14th Amendments. It was beyond doubt, the court held, that the new maps were “designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats.”

The court rejected the lawmakers’ claim that the discrepancy between vote share and legislative seats was due simply to political geography: Democratic voters, they said, are concentrated in urban areas, so their votes have an impact on fewer races, while Republicans are spread out across the state. In fact, that doesn’t explain why the Wisconsin maps are so skewed. Rather, political science experts point to two predictors of a successful partisan gerrymander: state legislatures under one-party control and a recent history of close elections. Wisconsin has both.

So do several other battleground states, where extremely biased legislative maps could be at risk if the court rules against Wisconsin, according to an analysis by the Brennan Center for Justice. The analysis also found that 16 or 17 Republican seats in the House of Representatives-- two-thirds of the 24 seats that Democrats would need to retake control of that chamber-- are a result of extreme partisan bias in the drawing of district lines.

In recent years, Republicans have benefited far more from extreme gerrymanders, because of political trends and accidents of timing, but both parties are guilty of skewing maps when they’re able to. So how can the court get past its ambivalence and strike down clearly unfair maps?

There are several straightforward ways to measure the degree of partisanship. The plaintiffs have pointed to one in particular, called the “efficiency gap,” which looks at the difference between each party’s “wasted” votes. That means every vote cast for its losing candidates, and all votes for its winning candidates above the bare majority needed to prevail. The greater the difference, the higher the partisan bias in the maps.

Measures like this could appeal to Justice Anthony Kennedy, who said in a 2004 case that he was open to the possibility of a standard that would allow the court to rule on partisan gerrymanders. Justice Kennedy, as usual, holds the key vote on the issue, since the four more liberal justices are probably prepared to strike down Wisconsin’s maps, while the four conservative justices are likely to say the court shouldn’t get involved in the political process. But extreme gerrymandering is a problem that by definition can’t be fixed through the normal political process, since the whole point is to make it hard or impossible for certain voters to make their voices heard. That’s not government of the people; it’s government in spite of the people.

The better, although not perfect, solution is to take map drawing away from self-interested politicians and put it in the hands of an independent or bipartisan commission, as more than a dozen states have done, helping to make races both more competitive and less partisan.

Until that happens everywhere, the court must step in and stop the most egregious gerrymanders. If it refuses to, the problem will only get worse.

Randy Bryce seemed concerned about what would go down Tuesday for his state. "When a political party's ideas (GOP) are so horrible that they need to gerrymander districts," he said, "it really says a lot. Thousands of voters in Wisconsin voted more for Democrats than Republicans but more Republicans gained seats. That's just wrong. It's time the voters choose their representatives-- not the other way around." With the Court hopelessly split between far right partisan corporate goons-- John Roberts, Clarence Thomas, Sammy Alito and Neil Gorsuch-- and normal justices-- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan-- Anthony Kennedy will be the likely tie-breaker.

When lawyers for the voters challenging Wisconsin's maps filed their main Supreme Court brief last month, they quoted Kennedy 41 times, beginning with their opening paragraph: Partisan maps "penalize citizens" because of their "association with a political party, or their expression of political views," he said in 2004.

They have reason to be hopeful. In the past, Kennedy has lamented political polarization and gridlock-- conditions made worse by the election of hard-right and hard-left partisans who disdain comity and compromise.

Two years ago, he cast the deciding vote in letting voters take Arizona's redistricting process away from the legislature and assign it to an independent commission, such as the one Kennedy's home state of California already had.

Cornell Law School professor Michael Dorf, a former Kennedy law clerk, says the justice isn't shy about courts weighing in on political matters.

"He is pulled to the idea that challenges to the machinery of democracy ... should be justiciable," Dorf says. And Kennedy most likely sees partisan gerrymandering as "a kind of cheating. It think it offends his sense of fair play."

On the other hand, the 81-year-old justice lamented in 2013 that the courts should not have to decide major issues best left to the political branches.

"A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” he said.

The question of unelected judges making political decisions has confounded the court for decades. In a 1946 opinion on whether political districts should be roughly equal in population, Justice Felix Frankfurter said courts "ought not to enter this political thicket" and instead should rely on Congress or state legislatures to fix what's broken.

Only in the 1960s did Chief Justice Earl Warren write the final chapter in that debate, ruling that state legislative districts as well as those for Congress must achieve the principle of one person, one vote.

But the question in gerrymandering cases is different: It's not about the vote itself but its relative weight in picking winners and losers. Challengers in Wisconsin contend that when Democrats are packed into the districts their candidates win and sprinkled into a greater number of districts their candidates lose, the system is rigged against them.

A federal district court ruled 2-1 last year that those districts discriminated against Democratic voters "by impeding their ability to translate their votes into legislative seats." It demanded that the legislature draw new district lines by this November for use next year, but the Supreme Court-- with Kennedy's approval-- blocked that requirement by a 5-4 vote.

Arguing for Wisconsin Tuesday will be Solicitor General Misha Tseytlin-- another of Kennedy's former law clerks. His brief — which quotes Kennedy 33 times-- refers to gerrymandering as a "centuries-old status quo" and warns that any ruling against it would have to rely on one or more of the mathematical formulas devised by opponents. The result, he says, would be that in many states, "any displeased voter ... can file a lawsuit in federal court."

Daniel Epps, an associate professor at Washington University School of Law and another of Kennedy's former law clerks, says his former boss's search for the right balance between voting rights and judicial restraint was on display in the 2004 case.

“You can sort of see him struggling with it," Epps says. "And now is going to be the time when he has to come up with an answer.”

State Senator Chris Larson is the most effective progressive leader in the Wisconsin legislature. He told me early today that "After seizing power in 2010, Republicans in Wisconsin have used every effort to rig the political system against voters. Gerrymandering tilted the entire playing field their way and over time they have become less and less fearful of being held accountable for their actions against students, the environment, and working families. Just this month they passed a wildly unpopular $3 billion corporate giveaway to FoxConn, the largest public act of corporate welfare in American history. Shortly after, they passed the state budget which was over 2 months late, still falls short of even modestly funding K-12 education, and is yet the highest spending bill in state history (lots of corporate giveaways to fund). The US Supreme Court has a chance to restore integrity to elections by correcting the perpetual injustice inflicted by rigged maps. Setting clear guildlines is easy and it will ensure the will of voters is reflected every election instead of just the will of those elected every 10 years who then draw themselves into isolation."

Pennsylvania's most progressive state Senator, Daylin Leach, is busy running for the Democratic nomination for one of the most gerrymandered seats in America, PA-07. But not too busy to be ready to line up at 4am on Tuesday to get into the Supreme Court session for the oral arguments. He's a member of the Supreme Court Bar and they have a separate line, but it's still a line. Daylin was a prominent part of one of the amicus briefs and he's live-blogging the whole experience. Yesterday he told me that "Gill vs Whitford may be our last chance for a long time to make our elections meaningful. Gerrymandering is an obscene and poorly disguised theft of our vote. The vast majority of us are shoved into districts specifically to guarantee that our votes will never matter. This leads to few competitive elections and incumbent legislators who have no political incentive to accomplish anything. It is destroying our democracy and impeding any effort to actually solve problems. Lets hope that 5 justices care enough about what the founders envisioned to preserve it."

Scalia (1936-2016)

We mustn't pretend that Justice Nino
was anything but, you know, what he was

UPDATE: Noah passes along a totally to-
the-point thought for the day (see below)

Futurama Wiki

by Ken

It happens every time an American officeholder dies leaving behind a record of evil: Amid the conventional pieties about the great sorrow, the great evil gets lost in the shuffle. In the case of that giant blowhard Antonin Scalia, the Supreme Court justice whose sudden death came as such a shock today, it's especially important not to let the subject pass through with the usual pieties.

In a word, Nino Scalia was a monster, and leaves behind an almost unbroken 30-year career of judicial mayhem -- adjudicating and bullying his fellow justices to adjudicate according to the diseased perversions of his social and political philosophy.

It's all the more important to call Justice Nino on his record because of the pretense he was allowed to maintain that he was a judicial "originalist," that his decision-making process was based on the "original intent" of the framers of the Constitution. Like just about everything this blowhard blew, it was a lie. His opinions were almost always formed in his far-right-wing ideological cauldron, and then dressed up in language pretending to claim knowlege of framers' "original intent," which was always twisted to support his ideologically based opinion.

Justice Nino devoted untold energies in those 30 years on the High Court to transforming the U.S. into the stinking hellhole of his mind: a world of unchallenged privilege for already-overprivileged white male Christians. Justice Nino always got to decide who had what kinds of rights and how much of them; the "originalist" trappings were simply grafted on. When push came to shove, as in the far-rightists's preposterous misreading of the Second Amendment to guarantee a non-existent right of all citizens to own guns, our Nino could not only ignore the "original intent" but ignore the plain language of the amendment, which states clearly that it relates to maintaining militias.

So on matters of government power and economic privilege, we were asked to believe that the framers' original intent was always to favor the power and privilege of the ruling orthodoxy. In matters of civic rights too, the operative concern was for the most restrictive orthodoxies -- as long as it wasn't right-wing orthodoxies that might be restricted.

Finally, some thoughts on a few specific issues:

JUSTICE NINO'S LEGAL "BRILLIANCE"

We're still hearing about how brilliant Justice Nino was, and what a brilliant writer, and all I can say is, once again: WTF? As writing, his Supreme Court opinions were barely a step above gibberish -- thuggish, assaultive, take-no-prisoners gibberish, mind you, but gibberish still. I suppose you could say he was a master of sophistry -- phony-baloney arguments dressed up to sound like simple logic. But I don't get how this passes for brilliant legal argumentation.

Hardly a word of his bombastic blithering ever made actual sense except as shameless bullying, substituting raw prejudice and aggression for argumentation. If any of his opinions had been submitted as a freshman English composition, it would have to have been graded somewhere between a peak of D-minus and a closer-to-typical F-minus. All the self-confidence in the world doesn't make logic-free, ad hominem ranting minimally acceptable argumenation.

THE SUPREME COURT SUCCESSION

I know there's already outrage being voiced at Republican leaders' bald statement that they won't consider an Obama nomination. This is certainly cheeky, but the reality is that as our system has evolved, there isn't much chance of Senate consideration of a Supreme Court nomination that's made in the final year of a presidential term, even though the Constitution doesn't offer any such proscription. But it is the reality, isn't it?

FOOTNOTE: IF THE SHOE WERE ON THE OTHER FOOT

I always like to play this little game, If the Shoe Were on the Other Foot. Of course if it was a Republican president faced with a Supreme Court vacancy in February of the fourth year of his/her term, any attempt by Democrats to interfere with his/her constitutional responsibility to name a replacement would be greeted with choruses of right-wing outrage and cries of "tyranny!"

But for right-wingers nowadays, hypocrisy is considered not just "no foul" but a virtual obligation. If you aren't being hypocritical, it's assumed you aren't really trying.

It's sobering enough to consider that right-wingers now have effective control of the Supreme Court confirmation process, as long as there isn't a 60-vote majority against them, and there isn't ever going to be one. And that means that the Right has influence amounting to veto power over the Supreme Court appointment process, since the right-wingers have effective veto power over any nominee they can muster 41 votes against.

This explains, I think, why -- notwithstanding right-wing invective against "liberal Supreme Court justices" -- we haven't in fact had a liberal Supreme Court justice, as far as I can see, since the retirement of Thurgood Marshall in 1993, and probably won't ever have another. The best we can hope for is moderate justices as distinguished as John Paul Stevens (1875-2010) and David Souter (1990-2009) -- both great justices, I think, for the intrepidity of their support for authentic constitutional values, at a time when those values were being increasingly assaulted by the right-wing thug justices, but neither in any sense a liberal.

The same goes for the Court's current block of moderates: Justices Ruth Bader Ginsburg (1993-), Stephen Breyer (1994-), Sonia Sotomayor (2009-), and Elena Kagan (2010-), honorable moderates all. Godspeed to them all.

There is, of course, an opportunity here for the DSCC --

To campaign for Democratic Senate candidates to retake control of the Senate, arguing the importance of Supreme Court confirmations (and confirmation of other presidential appointees). Democratic control wouldn't change the grim reality of the power of the filibuster, but it would certainly make a difference whether the Judiciary Committee holding confirmation hearings is chaired by a D or an R.

Yeah, I know this is pretty hilarious. I just thought I'd mention it.

ADDITION BY SUBTRACTION: THE
IMMEDIATE POST-SCALIA COURT

My gut response to the prospect of the current eight-member Supreme Court configuration remaining in place for, probably, more than a year: This is probably as good as we're going to get -- a case of addition by subtraction. At least now none of the nightmares that were set to ensue with the old 5-4 majority can happen. (Presumably the Court is sitting on a stack of cases it thought it had "decided" by that majority. Sorry, guyz!) Of course not much good can happen in this configuration except insofar as Slow Anthony K (or just possibly Chief Justice "Smirkin' John" Roberts) is prepared to make it happen, but how is this any different from the situation we've been in?

Obviously there are a lot of cases where the remaining justices will have to try to finesse 4-4 splits, trying to see if there's any kind of decison for which either side can negotiate a fifth vote. This will be especially problematic where federal appellate courts dump conflicting rulings in the High Court's hopper. It will be a mess. But can anyone say that the history of the Roberts Court has been anything but a mess?


UPDATE: NOAH SHARES THIS TOTALLY
TO-THE-POINT THOUGHT FOR THE DAY

"For some reason," he says, "I've been thinking of the attached quote attributed to Clarence Darrow's 1932 memoir."

#

Amazing but true: The Supreme Court looks into the Constitution and finds that there are some rights there for people who aren't rich

He-e-ere's Booby! "Why don't we save some money and get rid of the Supreme Court?"


"Justice Anthony Kennedy is a conservative Republican. The irony of Obergefell v. Hodges is that it is also a socially conservative opinion."

-- Ian Millhiser, writing on ThinkProgress

"This Court is not a legislature."

-- Chief Justice Roberts, in his dissenting opinion

"If we're serious about restoring the American Dream, we need 'all hands on deck.' We must ensure that all Americans – regardless of sexual orientation and gender identity – are guaranteed the opportunity to achieve a better future for themselves and their families, and contribute fully to our shared common enterprise."

-- from a statement by former Adm. (and Rep.) Joe Sestak

by Ken

As he does so often, Joe Sestak nails it. According all citizens their basic rights isn't about doing "them" some sort of favor. It's about being part of a society that's serious about "our shared common enterprise."

We'll come back to Joe's statement. It is, it seems to me, is where we want and need to wind up. Meanwhile we have some filling in to do, and that includes dealing with outright buffoonery like the above sentence from Chief Justice "Smirkin' John" Roberts's dissenting opinion today in Obergefell v. Hodges. Can't you just see the smirk on Smirkin' John's puss as he delivers that hilarious one-liner? "This is court is not a legislature," quips the man who has spent nearly all his time on the Supreme Court using it precisely as a legislature -- often declining to recognize Congress as a legislature. (Of course Congress itself has done its best to abandon that role, but the acts of Congress the chief justice has used as toilet paper date from times when it was at least semi-functional.)

As Howie noted in an "update" this morning, the decision in Obergefell v. Hodges was finally released today, and with "Slow Anthony" Kennedy joining the Supreme Court's four sane justices (for once, instead of simply lumping them thusly, let's recognize them by name: Ginsburg, Breyer, Sotomayor, and Kagan), it turns out that gays and lesbians have a constitutional right to get married just as if they (we) were regular people.

"How unbelievably quickly public opinion changed"

Washingtonpost.com's Chris Cillizza today presented five charts to track the "unbelievably quick" change, staring with this "baseline" chart based on Gallup polling. (Click to enlarge.)

For the record, I have no plans to walk down the aisle anytime soon (hey, the occasional date would be nice), but believe you me, I feel the importance of the High Court's open recognition of our humanness -- or at least five-ninths of the Court. (A shout-out to the Slowman! I know I'm hard on him, for reasons I think are painfully obvious, but I've never said he doesn't from time to time rise to the occasion.) And once again I register the seismic change in public opinion that has taken place in such a relatively short time after all those years (or decades, if not centuries) of incomprehension, loathing, and brutal repression.

The dissenters: Justices Clarence, Smirkin' John, Sammy, and Nino

We now have, by the way, a provisional answer to the question: "How many ways are there to try to deny basic human rights to people of non-mainstream sexual orientation?" Going by the need felt by each of the naysaying justices felt to register a separate "no way, Jose" dissenting opinion, the answer would be: "at least four." (To be more precise, Justices Scalia and Thomas joined Chief Justice Roberts's dissent but also wrote dissents of their own. Justice Alito played "cheese stands alone.")

For the strong of stomach, ThinkProgress's Zack Ford and Judd Legum have gathered "19 Hysterical Passages From Supreme Court Same-Sex Marriage Dissenters."


COLOR ME "SURPRISED," SO LET'S CALL IN A PRO

Until the decisions in the Supreme Court's two current marquis cases came down yesterday and today, I hadn't realized how unoptimistic I was about both. As I hypothesized last night, writing about the 6-3 ruling in King v. Burwell, my surprise at the thumbs-up given to ACA-created subsidies for healh insurance purchased on the federal exchange had something to do with always expecting the worst from this Court. In the case of today's decision there was an additional factor: the justices' own clear disinclination to handle the matter until it was forced to, when finally a split developed at the circuit-court level.

It seemed pretty clear that the justices for whatever reason(s) didn't want to be pinned down to having to say, yea or nay, whether there is a constitutional right to marry regardless of sexual orientation. I figured the justices would try to find some way of narrowing he scope of their ruling, and my go-to legal eagle, ThinkProgress's Ian Millhiser, argues that Justice Kennedy did pull a punch:

Obergefell v. Hodges is not the most perfect victory the Supreme Court could have handed gay, lesbian and bisexual Americans. That would have been a decision applying some form of “heightened scrutiny,” a legal declaration that all laws that discriminate on the basis of sexual orientation must be treated with skepticism by the courts.

And yet the decision is still a "massive victory," says Ian. "And it likely clears the path for a follow up decision establishing that the rights of gay men, lesbians and bisexuals extend far beyond the marital context."

How so? Ian is intrigued by two words used conspicuously in Justice Kennedy's majority opinion: immutable and fundamental.

"Immutable" is used twice, "once in an off-hand statement that sexual orientation is an "immutable nature," and again in a more pointed statement that "psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable."

Kennedy’s declaration that sexual orientation is immutable has obvious political significance. It puts to bed, at least for legal purposes, what remains of the debate over whether people can choose not to be gay. But this word also carries particular significance in a case such as this one, where a discrete group of Americans allege that they are victims of discrimination. Though the Court’s cases have, at times, been murky on this point, they often refer to immutably as one of several factors that, when combined, can trigger heightened scrutiny. Kennedy’s decision to use this loaded word is a sign that he — and a majority of the Supreme Court — is willing to hold that all anti-gay discrimination by government should be treated skeptically.

Obergefell drops other hints that such a holding is coming. The primary factor in determining whether discrimination against a particular group should be subject to heightened scrutiny is whether that group has historically faced discrimination that bears “no relation to ability to perform or contribute to society.” Kennedy leaves little doubt that gay people meet this standard. “For much of the 20th century,” he writes, homosexuality was treated as an illness.” Meanwhile, “same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law.” Sex between two men or two women “remained a crime in many States,” and “[g]ays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate.”

As for "fundamental," Ian observes, "Obergefell holds that marriage is a fundamental right, and that this right extends to same sex couples.

This holding is significant for two reasons. For one, it normalizes the Supreme Court’s gay rights jurisprudence. The Court’s past major gay rights decisions, all of which were written by Kennedy, often read as if they were assembled from rejected lyrics from the Age of Aquarius. They spoke loftily of principles such as “dignity,” but left the reader wondering exactly what sort of legal analysis the Court was engaged in. By rooting the Court’s decision in a fundamental rights analysis, by contrast, Kennedy uses a long-recognized, if controversial, method of deciding constitutional cases. When a right is recognized as fundamental, any law that abridges it must be treated as preemptively unconstitutional.

As Kennedy explains, “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” This process “has not been reduced to any formula.” Instead, “it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.”

Much of Kennedy’s explanation of why the right to marry meets this standard drips with the same kind of purple pose that Kennedy used in his past opinions. “From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage,” begins one section of the Court’s opinion. “Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm,” Kennedy continues. “Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.”

Yet beneath all of this florid language, it is also clear that Kennedy understands, at a very basic and personal level, the humanity that he shares with men and women who happen to be gay. The most moving portion of the Obergefell opinion isn’t Kennedy’s soaring arias about the nature of marriage, it is his simple recitation of the facts of this case.

I'll leave you to Ian's unfolding of the facts of the cases amalgamated in the Obergefell ruling and jump to his conclusion:

Justice Anthony Kennedy is a conservative Republican. The irony of Obergefell v. Hodges is that it is also a socially conservative opinion. The men and women behind this lawsuit, Kennedy writes, seek admission into one of the most profound and most conservative institutions in our society. According to Kennedy’s opinion, “marriage is a keystone of our social order.” It is “the foundation of the family and of society, without which there would be neither civilization nor progress.” It gives “character to our whole civil polity.” And it “remains a building block of our national community.”

And when Kennedy looks at men and women such as DeKoe, Kostura, Obergefell, Arthur, DeBoer and Rowse, and he does not see people trying to disrupt the social order. He sees people who served their country, who take in children that others cast aside. He sees the life he has enjoyed with his own wife, and he understands how soul-crushing it would be if the state treated his wife as if she were a stranger to him.

ADM. JOE SESTAK REMEMBERS "THE DAY I WAS
LEAST PROUD OF THE NAVY I LOVE SO DEARLY"

While the haters have been out in force today, there has also been a splendid outpouring of enthusiasm and good will all across the social spectrum -- a tribute to the amazingly rapid change in the American state of mind. Howie has passed along smart, heartfelt statements by an assortment of folks like Blue America-endorsed Senate candidates Donna Edwards in Maryland and P.G. Sittenfeld in Ohio, and Reps.Mark Pocan (Wisconsin), Ted Lieu (California), and Jared Polis (Colorado).

But the statement that really got to me comes from former Adm. (and U.S. Rep.) Joe Sestak, who for me always combines a big-picture-type guy's vision with a nuts-and-bolts real-world problem-solver's perspective. In both his noble 2010 Pennsylvania U.S. Senate campaign and his current one, his voluminous stream of incisively substantive campaign e-mails have reflected the voice of a big-picture-type guy with the perspective of a hands-on "let's get it done" guy accustomed to, you know, getting it done. (No wonder, as Howie has been reporting, he inspires such loathing from the DSCC and the rest of Democratic officialdom.)

"Today's ruling," Joe's statement begins, "affirms what I learned in my 31 years in the U.S. Navy, where I went to war alongside men and women who were gay."

I could never fathom a justification for any of these warriors going home to the one he or she loves and not having the same equal right to marry that person.

I will always remember the day I was least proud of the Navy I love so dearly – a day in 1993 when an official Navy spokesman, commenting on what would become Don't Ask Don't Tell (DADT), told the New York Times that 'homosexuals are notoriously promiscuous' and if allowed to declare their sexual orientation openly, heterosexuals showering with gay men would have an 'uncomfortable feeling of someone watching.'

I was ashamed. When DADT was passed, a two-star Admiral asked me, “What do you think about this policy?” I said, "It's unconstitutional and I have no doubt that the Supreme Court will throw it out in a couple months." Unfortunately, that didn't happen.

So when I got to Congress, I was proud to co-sponsor legislation to end DADT and prohibit the military from discriminating based on sexual orientation. In my view, we need the best of our communities in the military, regardless of sexual orientation, so that each of us together can truly "be all you can be."

The same can be said of our entire society, and it's why today's ruling is such an important step. I am running for the United States Senate to continue taking the further steps on the path to true equality – in veterans' benefits, public accommodations, adoption refusal laws and so many other fundamental areas.

If we're serious about restoring the American Dream, we need 'all hands on deck.' We must ensure that all Americans – regardless of sexual-orientation and gender-identity – are guaranteed the opportunity to achieve a better future for themselves and their families, and contribute fully to our shared common enterprise.

IN CASE YOU WERE WONDERING ABOUT THE MANGY
MENAGERIE OF 2016 GOP PRESIDENTIAL HOPEFULS --

I've arranged in alphabetical order a compendium of statements by GOP contenders this morning sent out by DNC National Press Secretary Holly Shulman (who herself says: "Today is a monumental step toward equality. Same-sex marriage will now be legal all across the nation. Love is love, and it’s now the law"):

BUSH: "I believe in traditional marriage."
FIORINA: "I do not agree that the Court can or should redefine marriage."
HUCKABEE: "The only outcome worse than this flawed, failed decision would be for the President and Congress…to surrender in the face of this out-of-control act of unconstitutional, judicial tyranny."
JINDAL: "Marriage between a man and a woman was established by God, and no earthly court can alter that."
PERRY: "I'm a firm believer in traditional marriage… I fundamentally disagree with the court rewriting the law and assaulting the 10th Amendment."
RUBIO: "I believe that marriage…should be between one man and one woman."
WALKER: "The only alternative left is to support an amendment to the U.S. Constitution to reaffirm the ability of the states to continue to define marriage."

THE BATTLE AHEAD

This morning Howie quoted Angie Craig, one of two Democrats seeking the Democratic-Farm-Labor nomination to challenge reactionary Minnesota GOP Rep. John Kline, making a crucial point:

While today is a day for celebration, we can’t forget there is still more to do to stop discrimination against the entire LGBT community in areas such as employment and housing, just to name a couple... There are still millions in the LGBT community across the country who can still be fired just because of who they are – and there is no excuse for that.

Exactly right, Angie. The case for making a federal case of same-sex marriage has been controversial, to say the least, in the LGBT community, because clearly it isn't as important in human terms as nondiscrimination in employment and housing. And yet it has turned out, much to the surprise of many of us, to be a winnable fight, and very likely a win that can be built on for those other rights.

I'm encouraged by Ian Millhiser's case that Justice Kennedy's opinion contains the seeds for future support from the Supreme Court recognizing LGBT people as people.

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