10/3/18, by Professor John Frary,
LET THE VERDICT BE DELIVERED. THEN WE CAN HAVE A TRIAL.
The editorial board of the New York Times, an authoritative source for Left-Lurcher (L-L) thinking, explained what’s at stake on July 6. The title of its editorial, “Democrats Do Not Surrender the Judiciary” reveals a vital L-L conviction. In their view, the United States Supreme Court belongs to either the Democrats or the Republicans.
It does not belong to that vague entity conventionally called “the American People.”
In July the board believed the Democrats had scant hope of denying President Trump a second Supreme Court appointment. They feared the consequences.
His nominee, they warned, “will lock in a 5-to-4 conservative majority, shifting the court solidly to the right for a generation.” There was no mention anywhere in this editorial Achtung about conflicting theories of Constitutional interpretation. The issue, as they saw it, was power, not principle. “This is all the more reason,” they explained, “for Democrats and progressives to take a page from “The Godfather” and go to the mattresses on this issue.”
Let’s pause a moment here to savor the editors use of this common mafia metaphor. There’s something elegant about the neat way it fits into all the filth that has been poured on the nominee’s head; and also with the L-L view that the Court is, or should be, cosa nostra (our thing).
The part of the editorial board’s call to arms with the most potent durable significance is the paragraph where it explains why the Democrats must make it clear to the voters that the judiciary plays a crucial role “in shaping this nation.” You see, “the judiciary is taking an ever-greater hand in policy areas, ranging from immigration to guns to ballot access to worker rights.”
They cite John Boehner, the former Republican House speaker in support. “The only thing that really matters over the next four years or eight years,” they quote him as saying, “is who is going to appoint the next Supreme Court nominees.” This is not quite exact. Who gets chosen matters even more.
So much for democracy. When the parties cannot agree on common policies, and their disagreements can’t be resolved then this means the power of our government must pass to the United States Supreme Court (USSC) and lower ranking federal judges.
These judges are selected not elected. The voters have no effective way to influence the judicial oligarchy that must now rule their lives. Their votes count only to the degree they are allowed to elect the president, who has the power to nominate, and the senators who must approve the president’s choice.
Sure, the First Amendment may allow them the right to complain. So what? Won’t make any difference. Judges hold office for life unless impeached.
The USSC has nine members. They are nominated by one man, the president. This nominee must be approved by fifty senators. The number of persons normally considered eligible for nomination comes from a pool of several hundred judges, professors, and politicians.
Add the fact that just five of the top nine are needed to legislate for the whole nation, and we see that there hasn’t been a narrower oligarchy seen since the Soviet Politburo disappeared. No matter how often the the USSC is called a “democratic institution” simple arithmetic contradicts— demolishes—that semantic fraud.
As the nomination drama develops, we can see that the L-L senators have acted in accord with the NYT editorial board’s views.
In late June, even before the board editorialized, Chuck Schumer made it clear that Judge Evil (later revealed as Brett Kavanaugh) was unacceptable. “Americans should make it clear,” the Democratic minority leader said on the Senate floor, “that they will not tolerate a nominee chosen from President Trump’s pre-ordained list.”
(Tangentially but importantly, Senator Cotton R-AR made an important point: that when Trump revealed his list of possible nominees during the campaign, he was telling the voters the kind of Justice they would get if he were elected. This actually introduced an element of democracy, or popular control, in the process.)
Now a simple timeline:
- Too eager to wait for the starter pistol to go bang, Senator Bob Casey Jr (D-PA), said right before Trump’s announcement that he would “oppose the nomination the President will make tonight because it represents a corrupt bargain with the far Right, big corporations, and Washington special interests.”
- President Trump introduced Brett Kavanaugh to the country on July 9 in a 9 p.m. press conference.
- At 9:06 p.m. Sen. Mazie Hirono tweeted, “Judge Brett Kavanaugh has not earned the benefit of the doubt.
- At 9:10 Sen. Chris Murphy (D-CT) promised to vote no on Kavanaugh’s confirmation.
- At 9:18 Sen. Kamala Harris (D-CA): “I will oppose his nomination to the Supreme Court.”
- Less than half an hour after the conference began Cory Booker tweeted “ I’m strongly opposed to his confirmation.”
- Elizabeth Warren deliberated a whole hour before tweeting: “I’ll be voting no.”
- That evening Sen. Kirsten Gillibrand proclaimed at a rally that “Stopping this will take all of us, fighting as hard as we can.”
- On July 10 Sen Bernie Sanders announced .“[We] must mobilize the American People to Defeat” [the nominee].
Here’s a supplemental list of Democratic senators who delivered their verdicts, or announced their suspicions,
prior to the Judicial Committee trial:
- Richard Blumenthal (CT),
- Sherrod Brown (OH),
- Ben Cardin (MD),
- Chris Coons (DE),
- Dick Durbin (IL),
- Martin Heinrich (NM.),
- Tim Kaine (VA),
- Patrick Leahy (VT),
- Bob Menendez (NJ),
- Mark Warner (VA),
- Sheldon Whitehouse (RI).
Tammy Baldwin of Wisconsin and Debbie Stabenow of Michigan waited a few days to deliver their guilty verdicts. Both come from States that went to Trump in 2016. I’m not hinting that they had to put on a show of deliberation. That would be low. I’m just reporting verifiable facts.
The great (although not good) H.L. Mencken once remarked that “The older I get, the more I admire and crave competence, just simple competence, in any field from adultery to zoology.” Old Henry would have found nothing to admire in the L-L senators’ handling of the trial that followed the verdict.
But that’s a subject for another column.
John Frary is a retired college professor of 32 years, a well-known conservative columnist and activist, and a former Maine congressional candidate.
Professor Frary is a regular contributor to Maine First Media and will be back next week with another exclusive column.