American Consequences - May 2019

Agonistes

The Democrats believe all this norm-breaking can be remedied only by breaking more norms... Brett Kavanaugh in his place. Kavanaugh faced a smear campaign unlike any since the irascible Bork with his irascible beard, and was confirmed 50-48, the narrowest margin since – precedent rears its head again – the re- nominated Stanley Matthews’ 24-23 vote in 1881. If Gorsuch sits in a “stolen” seat, Kavanaugh’s sin – even before the 11th-hour sexual-assault allegations – is that he’s in the “catbird seat” against swing-vote liberalism and gives Trump some sort of immunity from prosecution. (As if he’s Michael Cohen with a Yale degree.) The Democrats believe all this norm-breaking can be remedied only by breaking more norms – like expanding the Supreme Court, eliminating the Electoral College, lowering the voting age to 16, restricting political (I do feel sorry for Merrick Garland, but it’s not like he’s been sent off an ice floe. He remains in his “backup job” as chief judge of the second-most powerful court, the U.S. Court of Appeals for the D.C. Circuit, where he can take revenge by ruling against all sorts of Trump administration rules and regulations.) But Goodbye Kid Garland and Duke Nukem Gorsuch are not all the Dems are upset about. There was also the “law-pocalypse” when the first “gay” justice (in the matter of rights, not private life), Anthony Kennedy, retired, and Trump nominated the all-too-heterosexual

It was a risky maneuver, particularly given that Hillary Clinton was a heavy favorite to beat Donald Trump, and there was no guarantee that she would re-nominate the milquetoast Garland – as James Garfield had done for Matthews back in those crazy 1880s. We could’ve ended up with Justice Woke Karl Marx, which is why at least some vulnerable Republicans were expected to cave. But to everyone’s surprise, Republican senators’ spines held up and Trump won. Keeping Justice Scalia’s seat open held the GOP coalition together, providing the winning margin in key states. Clinton hardly mentioned the Court on the stump – Russian hackers apparently got to her teleprompters, in addition to rerouting her flights to avoid Wisconsin – and Judiciary Committee Chairman Chuck Grassley won by nearly 25% in supposedly swing-state Iowa. Trump then scoured his wonderful list of terrific judges (no really, the list is solid) and picked Neil Gorsuch. Gorsuch was confirmed despite having published a paper for the Cato Institute when he was 25, but only after a party-line vote on the so-called “nuclear option” to blow up Supreme Court filibusters – the need to get 60 votes on the motion to proceed before proceeding on the motion to vote. Combined with then-Majority Leader Harry Reid’s “tactical nuke” of lower-court filibusters in 2013, this returned Senate practice to what it was a decade earlier, when only a majority could stall a nomination.

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May 2019

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