To date, as a writer-of-columns, I have given Senate Republicans and our president a pass on the Brett Kavanaugh Supreme Court appointment. I thought there was enough noise out there without adding to it.

Privately, however, I thought it a bit strange that the nominee was not on the list of potential candidates for elevation to the court thoughtfully provided to our leader by the ultra-conservative Federalist Society. It began to make more sense when some of Mr. Kavanaugh’s interesting past pronouncements became public, as in the president of the United States is, for all practical purposes, above the law, at least while he (or she) is in office.

A justice on the court holding such views would, I am sure, be a source of comfort to a president who may have to make such an argument before the court in the maybe-not-so-distant future if he is to save his presidency. Far be it from me, however, to suggest that such a self-serving consideration played into the nomination decision.

I was not overly surprised when the Republican Senate Caucus made it clear they intended to put the nomination on a fast track and ram it through the Senate, hopefully with an “aye” vote from a blue senator or two from red states to give the process a fig leaf of bipartisanship, but on a straight party line vote if necessary. Such unseemly haste on a lifetime appointment is not what the framers of the Constitution had in mind when they talked about “advise and consent”, but if Mitch McConnell, Chuck Grassley, Orrin Hatch, Lindsay Graham, and their Republican fellow travelers are willing to try to explain themselves to the men-in-wigs when they reach the hereafter, so be it.

As Republican leadership is so prone to point out, elections have consequences. I take solace in the fact that if a future Democrat-controlled Senate blocks a Supreme Court nomination by a future Republican president for, oh, let’s say, nine or 10 months, in order to deny that president the appointment he (or she) is constitutionally entitled to make, I know the Republican minority will honor their basic principle that those in power get to do whatever they want, because they can.

And, yes, that unidentified flying object that just flitted across your imagination was, in fact, a pig flying.

Rather than rehash all that proceeded the final confirmation vote, what do we have in a newly minted Justice Kavanaugh?

At a minimum, we are adding another reliable vote to “originalist/textualist” wing of the court, which increases that faction to five members, which all but guarantees a working majority on all cases coming before the court.

At worse, we are injecting the virus of hyper-partisanship into a court that has already shown itself susceptible to political ideology trumping legal precedent when such is necessary to reach an ideologically preferred result.

If anything, the court is beginning to bear an uncanny resemblance to the court during the “Gilded Age” of the late 19th and early 20th centuries. That was a Supreme Court which raised, to a fine art, using “protection of individual rights” of the powerful to enable the powerful to deny the individual rights of the less powerful beneath them. It was a court that used “states’ rights” as a rationale for preventing federal intervention into cases of state-sponsored abuse of the rights of their citizens. It was a court which slavishly catered to the interests of the plutocrats of the time no matter how grotesque the legal sophistry required to support the result. The results? Jim Crow laws, voter suppression, legally tolerated lynching, and the striking down of minimum wage laws, zoning laws, and child labor laws, to name a few.

It was an era many thought to be in the distant past. With the addition of Justice Kavanaugh to the existing “originalist/textualist” wing, however, the past may only be prologue to the future.

In which case, Justice Kavanaugh may be very comfortable in his new robes.

As for the rest of us, maybe not so much.

 

 

 

 

 

 

 

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