The Neutering Of An Independent Judicial Branch

Finally, after widespread warnings before the 2016 elections and now nearly two years after, there seems to be a general consensus in the mainstream media and punditocracy that the Trump administration is a real threat to the rule of law. With that backdrop, the charade of Brett Kavanaugh’s confirmation hearings began today.

The Judiciary Committee Democrats opened the hearings with a coordinated attack on the unprecedented process for these hearings overseen by GOP Chairman Chuck Grassley, where 90% of Kavanaugh’s documentary history is unavailable to the committee and, in an unprecedented move in American history, executive privilege is bein invoked to protect a bulk of those documents. It is quite possible, perhaps even probable, that those privileged documents may contain evidence that shows Kavanaugh lied to Congress about his involvement in the Bush policy of torture when he was confirmed as a federal judge in 2006.

Kavanaugh will, without a doubt, still be confirmed as both Susan Collins and Lisa Murkowski have apparently folded even before the hearings began. But it is important for Democrats to highlight the unfairness, incompleteness, and partisan nature of the process that denied Obama’s choice for a Supreme Court seat and will install both Gorsuch and Kavanaugh. It is a process undertaken by the GOP for at least the last two decades with the express intent of neutering the independence of the judiciary.

Way back in 2000, Al Gore won the popular vote by half a million votes but, like Hillary Clinton, was seemingly denied the victory by a few hundred votes in the state of Florida that gave Bush the Electoral College and the presidency. Because of the closeness of that vote, less than 1% of the total votes cast, the Florida Supreme Court ordered a recount. As the deadline for that recount approached, a sitting Republican Congressman ordered Republican operatives to “shut it down”. Led by Roger Stone, Republican members of the Bush campaign as well as Republican staffers and operatives physically broke into the area where the recounts were taking place and stopped them. The so-called Brooks Brothers riot was a direct and literally physical attack on our electoral system, but also an open defiance of the state court.

One of the participants in that riot was none other than the esteemed Brett Kavanaugh, having recently finished his job as part of the Ken Starr witch-hunt of Bill Clinton. And when the Supreme Court ruled in Bush v. Gore that the recount violated the equal protection clause and a full state-wide recount could not be completed by the time the Electoral College was required to meet, it simply certified the original count and handed the presidency to Bush.

But the lesson that Republicans took away from this event was that the judicial system was unable to effectively deal with a fait-accompli, especially when it came to elections. In 2003, Tom Delay orchestrated an unprecedented mid-decade gerrymander in the state of Texas in order to boost Republican control of the House of Representatives. Those new maps allowed Republicans to gain a nearly 2 to 1 advantage in Texas House seats in the 2004 election, the first time the Texas delegation had a Republican majority since Reconstruction.

That mid-decade gerrymander was, of course, challenged in court. By the time that case reached the Supreme Court, Bush had been able to make two new appointments to the Court, John Roberts and Samuel Alito. With those two votes, the Court ruled in a 5–4 decision that the Texas gerrymander was constitutional with the exception of one illegally racially gerrymandered district. But the results of the 2004 election stood.

This decision led to the further realization among Republicans that even elections held in illegally gerrymandered districts will still stand and, at worst, will only be rectified in the next election cycle. That provided two advantages. First, with the undue gerrymandered legislative power, Republicans could consolidate their agenda. Second, with that power they could also remake the courts. Moreover, by constantly appealing courts’ decisions or simply redrawing maps that had been ruled unconstitutional with new illegal districts, these illegal gerrymanders could stand for multiple election cycles.

That scenario is what has occurred in North Carolina since 2011. As the justice on the 4th Circuit US Court of Appeals wrote recently in declaring the state’s latest maps unconstitutional, “We continue to lament that North Carolina voters now have been deprived of a constitutional congressional districting plan — and, therefore, constitutional representation in Congress — for six years and three election cycles.” Nevertheless, those illegally drawn districts will remain in place for the 2018 election, again, and now for every election cycle this decade.

North Carolina is also illustrative of Republicans using their legislative power, gerrymandered or otherwise, in radical attempts to control the courts. With their illegally gerrymandered power, the Republican-controlled legislature in North Carolina has orchestrated two new ballot initiatives that would move power over certain judicial appointments as well as the Board of Elections from the Democratic governor to the legislature. Similarly, the Republican-controlled legislature in West Virginia is in the process of impeaching the entire state Supreme Court, which will allow the now-Republican governor to appoint an entirely new court on an interim basis until the next judicial elections in 2020. In Pennsylvania, the Republican legislature was so outraged by the state Supreme Court ruling the state’s election districts an unconstitutional partisan gerrymander, they began a similar move to impeach every member of the Court who voted that way.

With the ascension of the Trump administration, defiance of the courts is getting even more brazen. The original deadline for reuniting immigrant children who had been kidnapped by the federal government, with some being abused and essentially tortured, with their parents was really nearly two month ago. An agreed-upon extension expired over 30 days ago and there are still hundreds of children who have not been reunited and it seems clear that the government is making minimal efforts at expediting reunification, especially for the kids of those parents who have been deported. In fact, it seems the government is simply relying on the ACLU and other private organizations to locate those previously deported parents. The reality is that the Trump administration is in open violation of another court order and it appears the judiciary is either unwilling or unable to call them to account.

And now, today, we have the US Senate, whose Republican majority actually represents a minority of the US population, considering the confirmation of a second nominee to the Supreme Court, who may well determine the course of the Court for the next two generations, by a President who also lost the popular vote, this time by a 3 million vote margin. And the Republican corruption of the judicial system continues. That is why it is just as important for Democrats to be focusing on the process as the actual person in Kavanaugh.

Doubtless, Trump is a serious threat to the rule of law, as his fury today at Jeff Sessions for simply having his Justice Department indict members of the Republican party because that might jeopardize Republican control of the House, which allows Trump’s lawlessness to continue unabated. But there should be no doubt that subverting the rule of law has been a Republican project for the last two decades. Trump is just the culmination of those efforts.

Originally published at on September 4, 2018.

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