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WASHINGTON – The ugly partisan fury that overwhelmed Judge Brett M. Kavanaugh has been upheld by the Supreme Court. It was the most ferocious battle in a political war against the judiciary that had intensified since the rejection of Judge Robert H. Bork in 1987.
But an even bigger conflagration may be coming.
"This confirmation vote will not necessarily be the last word for Brett Kavanaugh, who has been appointed to the Supreme Court for life," said Brian Fallon, executive director of Liberal Demand Justice Group and senior spokesperson for the presidential campaign. Hillary Clinton in 2016.
In the face of a Supreme Court controlled by five strong conservative judges, the Liberals have already begun to attack the legitimacy of the majority bloc and discussed ways to undo his power without waiting for one of its members to retire or die.
Some went so far as to propose – if the Democrats regained control of Congress and the White House in 2020 or later – to increase the number of judges on the ground to replace it with Liberals or to attempt to prevent, dismiss and replace Judge Kavanaugh.
Each step would be an extraordinary violation of constitutional and political norms. No justice has been withdrawn by indictment. And a previous attempt by Judge Franklin D. Roosevelt after the conservative-dominated Supreme Court rejected important parts of his New Deal initiatives during the Great Depression, is widely regarded as erroneous.
The one or the other step would also face a strong chance. Some Republicans would be forced to work for them: a bill on the extension of the courts would need the support of 60 senators to overcome an obstruction, and although a simple majority of the House could vote in impeachment, the dismissal would require two-thirds of the votes. Senate.
Nevertheless, even the political pressure of the threat could make some of the Conservative judges more cautious. While Congress rejected Roosevelt's draft law on judicial reform, Roosevelt's bill changed course as lawmakers considered it and began to enforce New Deal laws – a move called "change in time that would Saved nine ".
Today, the five majority members of the Supreme Court are all conservatives of the movement – Republican attorneys who have become major in the wake of an ideological turnaround a generation ago, after decades of liberal judicial decisions. As judges, they tend to rule more conservatively on conservative outcomes than former Republican nominees, such as retired Judge Anthony M. Kennedy.
And just like in the early decades of the 20th century, when a conservative-dominated Supreme Court repeatedly invalidated progressive economic policies such as child labor and the minimum wage laws leading to the New Deal, the Democrats worry that the new majority will systematically crush their achievements – not only by canceling past achievements such as the right to abortion, but also by canceling programs that they hope to implement if they resume power, such as the extension of Medicare or efforts to combat climate change.
Over the next few weeks, many Democratic strategists want to change the subject of the Supreme Court, hoping that the passions of Republican voters sparked by the Kavanaugh's fight will subside before the mid-term elections. Noting that the elections are approaching, Senator Chris Coons, Delaware Democrat, said the NBC's "Meet the Press" on Sunday, referring to Kavanaugh's indictment, was "premature".
"To talk about it at this stage does not necessarily cure us and does not move us forward," he said.
Senator Lindsey Graham, Republican of South Carolina, said in "Fox News Sunday" that he intended to help House Republicans in the election campaign of alternative districts over the next month, asking their Democratic opponents they were in favor of impeaching Judge Kavanaugh. "Do you want a result so serious that you would upset the law?"
Nevertheless, many Liberals are anxious to restart the fight if they win a majority in the House and a subpoena power, instead of resigning themselves to waiting for a Conservative judge to leave the court. The oldest of the five, Justice Clarence Thomas, is only 70 years old.
Many, for example, are committed to trying to uncover more of Justice Kavanaugh's records at the White House in the White House in the hope of finding more evidence at the White House. supporting their accusations of lying under oath.
"We are going to get these documents that are out of sight, and they will provide further evidence that he has lied," said Mr. Fallon. "And these allegations of sexual assault have created a wave of indignation and contestation of the legitimacy of the court that could even eclipse the impact of the lie."
Due to the Presidential Archives Act, any record of the Bush administration that Republicans refused to consult at the confirmation hearings could remain difficult to summon to appear before Congress until 2021. But a A just conclusion could possibly serve as a basis for attempting to dismiss and dismiss Judge Kavanaugh. .
"If a careful examination of his entire legal history – hitherto concealed in the Senate – shows that Mr. Kavanaugh lied under oath, the constitutional remedy would be an impeachment proceeding," more than three dozen of the most progressive Democrats in the House. write to Mr. Trump asking him to withdraw before the vote of confirmation.
The idea of packing his bags even before Mr. Trump appoints Judge Kavanaugh. As soon as Justice Kennedy announced his retirement in June, some Liberals began asking Democrats to prepare to expand the two-judge tribunal when they regained power, allowing for a future Democratic president and a Senate. controlled by Democrats to try to transform the ruling faction of the court its five Republicans appointed to six Democrats.
Still, the opening of this door could lead Republicans to simply enlarge the court when the pendulum will recover, thus prolonging the downward spiral.
Carrie Severino, Chief Counsel and Director of Policy for the Conservative Judicial Crisis Network, said it was illusory to think that Democrats would find irrefutable evidence of Judge Kavanaugh's perjury. She stated that it was "inconceivable" that the Senate condemns and revokes it, and warned that even such an effort would undermine the rule of law by delegitimizing the court as a separate institution from the partisan politics.
"They talk about anger and frustration, and I hope this is not a way that most Democrats would like to follow. Saying, "We are so angry at losing a fight that we destroy the entire institution in no time," it will not help anyone, "she said. "I do not think they would like this to be the standard applied at all levels, I objected to Judge Kagan's confirmation, but I'm not trying to challenge it."
Indeed, Roosevelt's proposal to make his legal suitcase failed to gain the support of his fellow Democrats. Roosevelt should have been showing more patience, leaving the court evolving through elections and a natural rollover, said William H. Rehnquist, then Chief Justice, at a 1996 speech that dates back to that time.
"Although Roosevelt lost this battle, he finally won the war by filling three terms as president and naming eight of the nine-member court," said Chief Justice Rehnquist. "It just shows that there is a wrong way and a good way to create a popular footprint on the justice system."
Nevertheless, today's Liberals are increasingly questioning the legitimacy of the process by which several conservative judges won seats in court, noted Russell Wheeler, a guest from the Brookings Institution who studies court confirmations. For example, many left-wing members are still upset by Republican senators' refusal to hold a 2016 hearing before Judge Merrick B. Garland, President Barack Obama's latest candidate, and consider that Judge Neil M. Gorsuch occupies a seat stolen. .
"The conservative majority will include four judges appointed by the presidents who have reached a position despite the loss of the popular vote.Also, the percentage of the voting population represented by Senate Republicans represents a minority of the total population," said Mr. Wheeler. . "And then you have the asterisk next to Judge Gorsuch's name."
Lee Epstein, a professor at Washington University in St. Louis who studies the judiciary, predicted that Chief Justice John G. Roberts Jr., aware of the danger to the legitimacy of the court, will try to incite him to stay silent for at least several years. .
"It could be a terrible moment for the court," she said. "The Republicans will not rule the government forever, and that could give rise to the kind of conflict we had in 1936 with Roosevelt. It was a bad time for the court and for the country. "
Shortly after Justice Kavanaugh's confirmation Saturday, the Democrats promised to watch closely.
"The legitimacy of the Supreme Court can rightly be questioned," said former Attorney General Eric H. Holder Jr. wrote on Twitter. "The court must now prove – by its work – that it deserves the trust of the nation."
But if the five Conservatives remain united and severely limit the governing capacity of a future Democratic majority to govern, he wrote: "Democrats will face tough questions: should we try to party or d & # 39; 39, other forms of exotic procedural extremism to guarantee the power to govern? . "
In this case, he said, the good side of the Liberals is that Judge Kavanaugh was confirmed, instead of being removed and replaced by a candidate without distinction but from an ideological point of view similar. Mr. Yglesias predicted that the cloud above his presence will help the "left"delegitimation necessary"From the courtyard.
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