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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, October 05, 2018

SCOTUS Steps Closer To Illegitimacy 51-49

[Cloture was today but senators made their opinions know. Final vote tomorrow.  Things were delayed into late October for Thomas. Looks like over twenty-five years later, for someone with more baggage, it will be a lot quicker. If more ugly. The final vote was Saturday and was 50-48, Murkowski voting "present" to balance off a "yes" who was at a wedding.]

Yale. Thousands of law professors. The Jesuits. A progressive leaning church coalition. Retired Justice John Paul Stevens. The ABA. Some old drinking buddies and his former college roommate.* But, like Lincoln's comment about preferring God on his side but needing Kentucky, beating Kavanaugh would require two Republicans senators. 

We got  one. Thanks, Sen. Murkowski, who made her position known by voting against cloture. Earlier, Sen. Heitkamp -- a very at risk red state Dem -- joined others in opposing him.  Sen. Manchin balanced off the gentlelady from Alaska by voting for cloture. His vote was mostly symbolic since Pence could have broke the tie anyway.  Still, annoying he voiced Republican "don't really believe the women" garage doing so.  Something, opponents should honestly face up to that many (white) Republican women share. And, Collins gave him cover. Doubt he would be the 50th vote.

It seems that Kavanaugh's Trumpian appearance (followed up by a partial walk back in a Wall St. Journal op-ed [as neutral judicial umpires do], which was all "me me me," not doing something like separating himself from Trump's ridicule of the victim's memory ... fictional at that as Colbert neatly did by comparing the two)  worked.  I don't know how much really as compared to convincing people who really didn't need to be anyway. It's hard to see to me his act convinced many senators though it might have attracted some of their base.  Which politically might be the same.

I rather Democrats don't get too many ideas about acting like Trump. We saw with Marco Rubio that those without quite the skill or stomach for that won't do well. Plus, it's a seedy strategy that debases you in the long run. I hope that is also pragmatically a bad idea for the progressive side.  Long term, yet another decade (from 1969) of a conservative majority, now without a true swing vote, might require some hardball.  I was not overall appreciative that doing so was compared to segregationists.  Long term, how much did that work, really?  Anyway, starting feeling a need to be a bit apologetic is a tad troublesome.  Some concern here is a good thing, but only up to a point.  Framing and mentality matters here.

There was two letters signed by law professors against Kavanaugh, one lesser known one (deserving more attention) from over six hundred female law professors.  Some opponents decided not to sign the letter for whatever reason, which is fine, though a major point here was the opposition alone as compared to specific details.  The author there has opposed Trump in particular as lacking a basic republican character so should get less discretion.  I think legitimacy comes from one's actions. We are a constitutional republic, a limited government, and merely because a majority under the system in place elects someone, that isn't enough.

I like democracy more than some people, but our democracy is of that sort. Elections do add some benefit of the doubt. The "presumption of constitutionality." I don't think Sandy Levinson's co-authored article was overly convincing there as to Trump though Trump's actions give enough evidence to have the courts in various cases to overrule that presumption. Others trust the people in power more, in part because they have the right enemies. Philosophically, that's understandable.

The system provides checks. One is the Senate. I have voiced an opinion on the senator's oath. Again, that is different than raw power. Many from the beginning voiced some concern for that oath and the responsibility it brings. I think it failed today. It wouldn't be the first time, but I think the case here was pretty blatant. Senator Murkowski and others have the insight on what it might breed. Some have warned that we have been on a road here from some time.  I do think there is a limit though.** 

And, [a person in the "opposing" thread linked] references the role of others, who have some importance in aiding and abetting the system in place. As with segregation, it doesn't work merely because of the governmental actors. The letters was a late awareness of what was at stake that should have been put forth earlier. The evidence was there before that Thursday hearing. It was not truly a surprise, but a stripping of the veneer.

We live in interesting times. As usual, that is something of a curse.

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* Or, as one tweet noted: 2400+ Law professors —The ACLU —Amnesty International —Former Justice John Paul Stevens —The Jesuit Society —National Council of Churches — Washington Post, USA Today, NYT, and LA Times editorial boards —70% of Americans.

** I found a comment from the mid-Bush years saying I was too naive about how the courts operated. I responded that I try to be realistic while still pointing out how I think things should work. Hopefully, things fall in the middle. The person also a long time ago said I sounded like a law professor.  Depends on what one.  (A law professor liked that comment on Twitter. Ha!) 

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