The last three Supreme Court hearings have been a disaster for the Democrats. Mitch McConnell and the Republican Party were able to confirm all of Donald Trump’s nominations: Neil Gorsuch, the alleged rapist Brett Kavanaugh and Amy Coney Barrett. Those three judges now make up a third of the Supreme Court, and neither of them should sit on the bench.
Gorsuch was nominated by Trump to succeed Antonin Scalia in 2017 after the Senate Republican majority refused to hold a hearing on Barack Obama’s candidate Merrick Garland for 293 days. Republicans’ refusal to give Garland a vote up or down was a violation of the Senate’s constitutional duty.
Kavanaugh was a corrupt ethical disaster long before Dr. Christine Blasey Ford accused him of attempted rape. Kavanaugh was also alleged to have lied under oath, used stolen documents to prepare witnesses and amassed gambling debts. And when faced with attempted rape allegations – including exposing himself to a former classmate – he responded by yelling at the senators and threatening his enemies with life-long legal retribution. Kavanaugh is the worst person to have sat on the pitch in my life (and I am aware of his hideous competition) but was vindicated nonetheless the lowest approval ratings one nominee since Robert Bork.
Then finally Barrett. She was confirmed after the election began to replace the man who nominated her. Her nomination soirée – which took place before her predecessor Ruth Bader Ginsburg was even buried – served as a super spreader event in the White House. It was confirmed with just 51 votes, and two of the Republicans who voted for it were named senators, not referendum winners themselves in the midst of unsuccessful re-election campaigns. Aside from the hypocrisy of the Republicans who voted for Barrett but refused to give Garland a hearing at all, Barrett’s affirmation is tantamount to tenants tearing up the floorboards as soon as they find they are not getting their bail back.
The Democrats couldn’t stop any of these people. They failed to stop most Trump and McConnell appointments in the lower courts as well, despite the relentless parade of unqualified and extremist lawyers continuing to push Republicans to the federal courts even now during the lame session.
I am aware that the Democrats are the minority party in the Senate. I understand that there was little they could have done to stop McConnell’s legal attack. But by now it should be clear that what the Democrats did – what they are still doing – just isn’t working. It has long been time for a new leadership in the Senate Judiciary Committee.
The current minority leader in the judiciary is California Senator Dianne Feinstein. She has indicated that she will not seek leadership of the committee at the next Congress. I’ve seen a lot of Senate hearings over the past 10 years. Suffice it to say that I’m glad Feinstein made a voluntary decision to give up that power.
Next in line is Senator Dick Durbin of Illinois, followed by Senator Sheldon Whitehouse of Rhode Island. Both stated that they wanted the job. Durbin is already the Senate minority leader and has served on the Senate Judiciary Committee for 22 years. He has proven himself to be a capable questioner who understands how a judge’s opinions or law review articles relate to his broader legal philosophy.
But Durbin’s approach to judicial candidates is entirely traditional. He uses his 30-minute blocks of time to ask smart questions about the nominee’s philosophy or qualifications. The candidate spends those 30 minutes fencing with Durbin, trying very hard not to say anything significant. If everything goes perfectly for Durbin and the Democrats, the Republican candidate will turn out to be … a Republican. It turns out that the judges appointed by the Republicans do not believe in abortion rights or homosexual rights, or really in rights other than the right of Christians to discriminate against everyone else.
But this traditional approach has failed. Highlighting the fact that Republican candidates are against Roe versus Wadewhen the president who nominated her literally promised to appoint only those judges who oppose a woman’s right to vote is not so helpful. Pointing out that a Republican candidate is a lemon when Republicans are picking their candidates straight from the lemon tree is a huge waste of time for everyone.
Senator Whitehouse, on the other hand, goes after the tree. Whitehouse does not allow herself to be distracted by the ideological perversions of each individual candidate; Instead, he continues to focus on the corrupt machinery that Republican judges make so they can make Republican decisions that benefit Republican interests.
People like Gorsuch, Kavanaugh, and Barrett didn’t just fall from the sky when Trump and McConnell needed them. They were created by a judicial-industrial complex that includes the Federalist Society, the Heritage Foundation, and the Judicial Crisis Network. They were created to reverse free democratic rights in certain ways: they support targeted restrictions on abortion providers (TRAP laws); they undermine minority rights by denying claims under the 14th Amendment and refusing due process of substantive law; they read the Free Exercise Clause of the First Amendment as the triumph of God’s bigotry over secular laws.
Whitehouse understands this and instead focuses his investigation – and attack – on the entire Republican justice system. Whitehouse is less concerned about how Republican candidates feel about the law because he already knows the answer. Everyone honest does. Republican candidates believe the law will say whatever the Republican agenda has to say to achieve their political goals. Rather than trying to get that obvious point out of them (and letting the nominees lie to him about it), Whitehouse focuses on who is setting this Republican agenda in the first place. It examines how much these dark forces have invested in each candidate and what return they expect from their investment.
Whitehouse’s interview with Amy Barrett was instructive. He didn’t really ask her any questions at first. Why should he All she would do was lie or repeat impeccably rehearsed non-answers to each question. Instead, Whitehouse said, “There’s a lot of hard-to-explain hypocrisy and bustle right now, and my experience in politics is that when you find hypocrisy in daylight, you’re looking for power in the shadows.” to deconstruct that makes the Republican judicial machinery work.
He treated Barrett like the least important person in the room at their own confirmation hearing. What she was There are Republican backers who put up with the whole gross, hideous, and deadly Trump experience just to bring judges like Barrett to court. At least Whitehouse was trying to show people why.
Perhaps this strategy works no better for the Democrats than what they have done so far. Perhaps there’s really nothing that can stop enough Republican senators from electing judges who are most ruthless in pursuing the GOP agenda. Perhaps nothing can be done to get ordinary citizens and progressive activists to fight these judicial candidates as if the fate of the entire community depended on them.
But it’s worth a try. What we have done has always failed completely. It can’t hurt to try something new.
AAll of this presupposes that the Senate Democrats are again in the minority. All of this contemplates a more effective way for the Democrats to fight a losing battle. But with the two runoff elections in Georgia and a cheap Senate ticket in 2022, there’s still a chance the Democrats will hold a majority in the Senate at some point during the Biden administration. And Sheldon Whitehouse as Senate Justice chair would be worth seeing.
It was Senator Whitehouse who made a “Friend of the court”Letter to the Supreme Court last term, the last time the court heard an important gun regulation case. His letter warned them that the rest of the country was paying attention to what they were doing. He wrote: “The Supreme Court is not doing well. And people know. Perhaps the court can heal itself before the public demands that it be “restructured to reduce the influence of politics”. Especially on the pressing issue of gun control, a nation desperately needs her to heal. ”Whitehouse regularly files amicus briefs with the Supreme Court.
Unlike many of his colleagues, Whitehouse is unwilling to indulge in the legal fiction that the court is an “apolitical” branch. He files these pleadings, highlights the other party’s terrifying right-wing arguments, and even talks harshly with the court because he knows what the court is doing and understands that transparency is the best way to stop it.
With a chairmanship of the committee and a majority in the Senate, Whitehouse could be trusted to do everything in its power to bring ethical transparency not only into the judicial nomination process but also into the Supreme Court itself. He believes that if Americans knew who was buying the dishes, they would ask for better judges. Whitehouse was one of the senators who did constantly on the case on ethics reform for judges as an attempt the corrupting influence of federal society from the federal courts.
I imagine Senator Whitehouse, Chairman Whitehouse, would try to change that. The first step in defeating the Republican machinery is to make people understand that it exists.
I’ve seen Democrats fight Republican candidates in the same way for 30 years. It worked with Robert Bork and then with no one else. The Republicans have updated their schedule and have never looked back. I need the Democrats to give Whitehouse an opportunity to tackle the Republican candidates in new ways. As Abraham Lincoln once said from Ulysses S. Grant: “I cannot do without this man. He’s fighting. ”