Ted Cruz made me crazy yesterday.

He said Trump made it very clear what sort of Justices he would appoint — he even submitted the list from which he’d choose! — and Hillary told the nation what sort of Justices she would appoint, and then the American people spoke: they chose Trump’s slate.

Well, yeah, Ted, except . . .

(a) Kavanaugh wasn’t on Trump’s list; he had to look beyond the list to find someone who felt most strongly that a president can’t be investigated/indicted while in office; and

(b) nearly 3 million more Americans chose Hillary.

Beto could beat Cruz!  Help him here!

I’m happy to stipulate Kavanaugh is a brilliant, decent, charming guy.  So was Scalia.  But this isn’t whom you’d like to have a beer with or whose intellect you admire.

Sheldon Whitehouse was one of several who laid out what’s at stake.  Listen to his compelling opening statement, which might have been titled “five to four.”


It’s amazing what damage well-intentioned Nader voters did in 2000.  Gore won more votes, but because Nader narrowed his margin, the loser of the popular vote skewed the Court to the right with Roberts and Alito, who then skewed the election process to the right with Citizens United and McCutcheon and by gutting the Voting Rights Act . . . which gave us Trump and Gorsuch and now, possibly, Kavanaugh.

Why wouldn’t Susan Collins and Jeff Flake and Ben Sasse switch parties on this one?

Is it fair to have denied Obama HIS nominee (a moderate) — after Obama was twice elected by a majority of the people — but to rush to confirm the Justice most likely to protect Trump if he is indicted when Trump was elected with a MINORITY of the vote . . . with the extensive assistance of Russia, our principal adversary since 1946?  Fair for the likely defendant to choose his own judge?

Two other pieces for your consideration:

  • Conservative Max Boot provides interesting context for the “judicial philosophy” discussions we’re likely to hear over the next few days.

. . .  I now realize there is no Platonic ideal of interpretation that allows judges to unerringly discern the original meaning of the Constitution or the correct interpretation of often vaguely worded statues. All sorts of difficulties arise: What if, as was often the case, one Founding Father disagreed with another? What if, as is also frequently the case, the court has to rule on matters that, because of technological or social developments, were unforeseen by the founders? And what if a justice’s interpretation of “original intent” is at odds with decades of precedents — is it “conservative” to overturn the prevailing line of cases? . . .

  • Adam Serwer provides horrifying context, beginning with the story of 100 Negroes whose undisputed murder the Supreme Court allowed to go unpunished.

. . . The Roberts Court is poised to shape American society in Trump’s image for decades to come. All three branches of the federal government are now committed to the Trump agenda: the restoration of America’s traditional racial, religious, and gender hierarchies; the enrichment of party patrons; the unencumbered pursuit of corporate profit; the impoverishment and disenfranchisement of the rival party’s constituencies; and the protection of the president and his allies from prosecution by any means available. Not since the end of Reconstruction has the U.S. government been so firmly committed to a single, coherent program uniting a politics of ethnonationalism with unfettered corporate power. As with Redemption, as the end of Reconstruction is known, the consequences could last for generations. . . .

. . . Even if Democrats win the next election cycle, and the one after that, an enduring conservative majority on the Supreme Court will have the power to shatter any hard-won liberal legislative victory on the anvil of judicial review. It will be able to reverse decades-old precedents that secure fundamental rights. It will further entrench the rules of a society in which justice skews toward the wealthy, and the lives of those without means can be destroyed by a chance encounter with law enforcement. It will do all these things and more in the name of a purely theoretical freedom, which most Americans will never be able to afford to experience.

America deserves a centrist Justice to replace the centrist Anthony Kennedy, much like the centrist — Merrick Garland — that Obama nominated.



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