The Republicans control all of the elected branches of the federal government, but they play the victim. There is a good reason for that. They are scared. Their president is highly unpopular, and their party’s positions are opposed by a majority of Americans. Damon Linker, columnist at The Week, notes that Republicans are increasingly maintaining their status as the ruling party by using “counter-majoritarian veto points” in the American system of government:
“George W. Bush lost the 2000 presidential election by roughly half a million votes and yet won the presidency with the help of two counter-majoritarian institutions — the Electoral College and the Supreme Court. President Trump lost the popular vote by 3 million votes and yet won the presidency, this time because of the Electoral College alone. In 2012, Democrats in House races received nearly 1.5 million more votes than Republicans, yet due in large part to gerrymandered congressional districts, the Republicans won a majority of the seats by a margin of 234-201. Some models predict that in the upcoming midterm elections this November, Democrats could outpoll Republicans by 4, 5, 6 or even 7 percent while still failing to win a majority in the House.”
However, the rush toward a one-party autocracy has met resistance. In particular, the federal courts have pushed back against Trump. But the Republicans have a game plan to deal with that.
In a relatively unnoticed development, Trump has nominated an unprecedented number of judges since he was elected. He had a backlog of 114 judicial appointments when he took office. This was the most of any president since Bill Clinton. This wasn’t an accident. Republicans, who control the Senate, refused to vote to confirm most of Obama’s judicial nominees in the last year of his presidency.
Paul Butler, a leading criminal law scholar, says, “All of these people are conservatives who will be interpreting and helping (re)write the law for decades… (Trump) is fashioning the federal court system of Steve Bannon’s dreams. The president has nominated judges who will cut back the civil rights of racial minorities and LGBT people, expand the power of police and prosecutors, restrict the ability of women to obtain abortions and favor big corporations over consumers.”
Now the Republicans are determined to get another justice on the U.S. Supreme Court as soon as possible. If the Democrats win control of the House and/or the Senate this November, that might not happen. That’s why they are so frantic about Brett Kavanaugh. As New York Times reporter Carl Hulse puts it, “Republicans know this may be their last, best opportunity to cement a conservative majority on the Supreme Court for a generation. They want to seize it despite evident political risk.”
Kavanaugh’s bizarre temper tantrum made him a folk hero on right-wing media. “He might have been a Bush appointee, but he channeled Trump yesterday,” said Brian Kilmeade on Fox and Friends. Kavanaugh sounded like Sean Hannity as he claimed the allegations of sexual assault are part of a massive conspiracy orchestrated by the Democrats and left-wing groups.
The distinctions between “establishment” and phony “populist” Republicans are blurring in this fight. George W. Bush has been somewhat critical of Trump, but he’s been calling undecided senators to convince them to vote for Kavanaugh.
Kavanaugh would be the second most conservative justice on the court (after Clarence Thomas), according to Judicial Common Space scores, a measure of judicial ideology developed by several political scientists and legal scholars.
Kavanaugh was nominated by Bush to become a D.C. Circuit court judge in 2003 but the appointment was held up for three years. He was criticized for having an inadequate legal background, for being a fierce political partisan when he worked for independent prosecutor Kenneth Starr, and for his closeness to controversial Bush administration policies (such as domestic spying, torture and rendition of detainees to other countries). When he worked in the Bush White House, he helped select many of the administration’s far-right judicial nominees.
As a circuit court judge, he authored a number of rulings limiting Obama-era environmental regulations, and he declared in a recent dissent that the structure of the Consumer Financial Protection Bureau, the agency created after the 2008 Great Recession to prevent future financial meltdowns, was unconstitutional.
Last year, he also dissented when the D.C. Circuit ruled that an undocumented teenager had a right to an abortion while in federal custody, stating that the ruling was “ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.”
Kavanaugh dissented when the court — including a judge named Merrick Garland — upheld a $70,000 fine by the Occupational Health and Safety Administration (OSHA) against SeaWorld. Dawn Brancheau, a 40-year-old trainer, had been dismembered and killed by an orca whale while hundreds of SeaWorld customers watched in 2010.
The company was fined for not taking “reasonable” steps to protect Brancheau from “recognizable hazards.” SeaWorld was aware of the dangers. Whales had attacked employees a number of times. That particular whale had killed two other employees previously.
However, Kavanaugh was more sympathetic toward SeaWorld. He felt that this was government overregulation. He said that OSHA shouldn’t regulate sports and entertainment businesses.
What a fine Christian gentleman!
This opinion column does not necessarily reflect the views of Boulder Weekly.