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SCOTUS vs. the American People

July 29, 2018

On February 13, 2016, Supreme Court Justice Antonin Scalia died, ending his nearly thirty year tenure on the nation’s highest court. At that time, the GOP leadership of the Senate (Republicans held a majority in that body for the first time under President Obama after the 2014 midterm elections) declared they would not act on any nomination to fill that seat until the new President was inaugurated in January of 2017. President Obama’s nomination of Merrick Garland to fill the slot became an exercise in futility as the Senate Judiciary Committee refused to hold hearings or vote on his nomination, nor did the entire Senate.

The story of Donald Trump’s ascension to the Presidency after his surprise victory in November 2016 has been told ad nauseum. He promptly nominated Neil Gorsuch, a much more Conservative jurist than Garland, to fill Scalia’s vacant seat. Hearings were held and Gorsuch was confirmed. The recently concluded SCOTUS term was concluded with his full participation – including several 5-4 decisions which most likely would have been decided differently had Garland been confirmed as would have been the traditional course of action under the circumstances.

Anthony Kennedy, himself confirmed to a seat on the Court in the waning days of the Reagan Administration (February of 1988), decided in late June of 2018 to retire early this month. Mitch McConnell and the GOP Senate leadership, unlike the case almost exactly two years earlier, announced their intention to hold hearings and vote to confirm President Trump’s nominee (Brett Kavanaugh) prior to this year’s midterm elections, which may or may not see a change in which party has a majority in the Senate.

Leaving aside for now the utter hypocrisy involved in setting aside a precedent McConnell had just established himself a year ago and agreeing to fill the seat immediately despite the coming election, rushing to replace Kennedy this quickly seems to many to be a ploy to further radicalize the Court begun by the installation of Gorsuch. Kennedy was no bleeding heart liberal, by any means, but he was often the swing vote in some extremely controversial and groundbreaking decisions rendered by the Court in recent sessions. Kavanaugh, judging by his writings and past court decisions, promises to be further to the right politically than his predecessor, which may serve to produce many decisions in future cases that may reverse decisions which have shaped legislation in recent years on such subjects as abortion, marriage equality, LGBT rights and others.

While further debate in the Courts is to be expected on controversial matters, wholesale reversal on such matters is likely to cause severe disruption on any number of fronts. Reversing Roe v. Wade would have life-altering implications in most, if not all, states, and definitely increased tensions between pro-choice and anti-abortion advocates. Other decisions may re-establish bans on marriage equality or the civil rights of LGBT individuals in many other areas of their lives. The list goes on and on, and many of these concerns will presumably be raised in the course of confirmation hearings, which is the purpose of those hearings.

What is not easy to ignore, however, is the potential of a conflict of interest arising as a result of one and possibly two SCOTUS members having to decide on issues affecting Donald J. Trump’s very Presidency. The strong possibility that the current investigations regarding the Trump campaign and the actions taken by the President and others associated with both his campaign and his Administration to this date could take a course which would lead to a Supreme Court decision which could make or break Donald Trump’s ability to retain his position.

The way in which President Trump went about deciding who he would nominate for such positions is fine. That individuals approved by the extreme right wing groups who provided him with the list from which he selected Gorsuch and Kavanaugh would face stiff opposition from Democrats and various other groups concerned over how future decisions that will drastically affect them is a foregone conclusion and part of the process. Donald Trump’s extreme demands for personal loyalty are not. It would not be unexpected for many people of both parties to expect a Supreme Court Justice to be capable of determining the appropriateness of their participating in a debate and vote on a case where even the hint of a potential conflict of interest may exist.

Donald Trump has amply demonstrated throughout the first year and a half of his Administration a decided inability to show such judgment himself. The circumstances of his firing of Jim Comey as FBI Director and his infuriated response to Attorney General Jeff Sessions’ recusal from matters concerning the Special Counsel’s investigation lead many of us to believe that he would also expect anyone he nominated to the Court to under absolutely no circumstances recuse themselves from a case directly dealing with his perceived powers as President of the United States of America. I think most Americans agree that the fact that SCOTUS is a coequal branch of government that he does not supervise and cannot legally fire as he can his cabinet members makes any difference whatsoever to Donald Trump.

On issues such as a sitting President being subject to criminal prosecution, subpoena under oath, or any number of other potential scenarios which may play out in the coming months, it seems on his record to date, Kavanaugh has a predisposition to tend towards the greatest possible leeway in the direction benefitting Trump. He and Gorsuch should both recuse themselves on matters dealing with these issues as they pertain to the President who appointed them.

I happen to disagree strongly with recent Court decisions which may decimate further organized labor in this country, as well as the travel ban that targets individuals from several predominantly Muslim countries. Gorsuch was on the wrong side of both, in my opinion. Kavanaugh did not participate in those decisions. Neither participated in the decisions like Citizens United and the gutting of the Voting Rights Act that many think threaten the future of democracy in this country, but I doubt Trump would’ve nominated them if they openly disputed those decisions. Like most Americans recently polled, I disagree that Roe V. Wade should be reversed. Men forcing medical decisions on women without regard for their input is unacceptable. Using the Court to allow authoritarian evangelical “Christian” morality into law while enforcing social, economic and political inequality, such as the above opinions have done, in my view, was not the intent written into the job description for SCOTUS or any other branch of of our government.

While I firmly believe the US Government and the American people would be far better served by not including Gorsuch and/or Kavanaugh on its Supreme Court, that’s not my call. Nor is it Donald Trump’s. But it certainly is against our interests for those two men to have any part in the proceedings of that body as they may pertain to the President who nominated them. This needs to be made abundantly clear to them, to President Trump and to all our elected Members of Congress. Let there be no doubt that we will not stand for Court appointments that end up saving the job of the corrupt politician who appointed them in the first place by allowing them to cover up their misdeeds.

Suggested Further Readings:

Supreme Court delivers blow to organized labor in fees dispute

Supreme Court upholds Trump travel ban

Justice Kennedy retiring; Trump gets 2nd Supreme Court pick

Kennedy’s retirement will have huge consequences for minorities and women

‘The McConnell rule’: Some Dems say the vote for Justice Kennedy’s replacement should be delayed

With Supreme Court’s Capitulation to Hate, Trump’s Stranglehold on Government Tightens

#MidtermsBeforeSCOTUS Takes Off as Democrats Told to ‘Stiffen Their Spines’ –

Siding With Billionaires Against Workers, Supreme Court’s Janus Ruling ‘An Assault on Labor Movement’

With Justice Kennedy Gone, Abortion and Gay Rights Are Next

A Second Trump Term Just Got Way More Likely


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  1. farlefty permalink

    Unfortunately, it’s working out that it IS Donnie’s call. With all the less far-right wing Republicans, like Paul Ryan, Dave Reichert and Bob Corker fleeing the coop the House will come under the control of the Freedom Caucus, who support Donnie 100% as long as he’s appointing hacks and setting polices forwarding their Evangelical Christian/corporatist/elitist agenda.

    Liked by 1 person

  2. kim permalink

    Good read, thank you. We must keep fighting for our world. Now


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