Government by Minority Rule

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115th Congress Senate party membership by state. Vermont and Maine have one independent senator each, Bernie Sanders and Angus King respectively. [Wikipedia]

INTRODUCTION: Views from the Edge publishes “Government by Minority Rule” with the kind permission of its author, Constitutional law scholar David Rudenstine.

“A minority of the national population now controls all three branches of the nation’s government. Or, in other words, in a democracy where the majority presumably rules, current American politics has turned this basic rule upside down and permits the minority to control the majority.

“The president lost the popular vote. The senate is in the hands of senators representing a minority of the overall population. While one-person-one vote requires that the election districts in the house be equal in population, gerrymandering permits the minority party — the Republicans — to control the house. And now the Supreme Court is in the hands of justices four of whom were nominated by presidents who lost the popular vote and who were confirmed by an undemocratic institution — the senate.

“The US constitution was designed to be anti-democratic in nature. Every state regardless of its population has two votes in the senate; the electoral college selects the president without constraints imposed by the majority vote; a majority of the Supreme Court justices invalidates legislation adopted by politically accountable legislators. The intention was to build safe-guards into the governing system to counter the effects of populism and the mobilized public mob.

“But it is unlikely that anyone who designed the system in the 18th century had the current radically distorted allocation of political power in mind, and I cannot recall the last time the current condition existed — perhaps in the 1920s and1930s. Certainly not since Hoover lost to FDR in 1932.

“And now Kavanaugh will be on the high court joining Roberts, Thomas, Alito, and Gorsuch, to make a conservative majority that will more than likely be pro-business, anti-environmental laws, against abortion, hostile to climate change laws and rules, opposed to rights of the LBGT community, rejecting of affirmative action, favoring of the entanglement of religion and government, favoring presidential power, rejecting of the rights of immigrants, and more.

“But after his screed on the left wing Democratic Party political conspiracy Kavanaugh claimed was out to destroy him, his career, and his family, how can Kavanaugh possibly participate in these and other cases which are laced with divisions that mirror Kavanaugh’s own conspiratorial views?

“That was the point that former Justice Stevens made a few days ago. The Supreme Court is possibly hog-tied if one of the nine frequently must recuse himself because of the appearance of a conflict of interest, and it would seem that is what Kavanaugh must do if finally confirmed — not participate in any case that his political screed encompased.

“Unfortunately, the answer may be that Kavanaugh may just tough it out. Scalia did that in a case involving Cheney after Scalia and Cheney went duck hunting together. Rehnquist participated in the design of an Army surveillance program aimed at domestic civilian political dissidents and refused to recuse himself in a 5 to 4 vote almost a half century ago.

“Impeachable? Not likely. Activities that are impeachable are four — treason, bribery, and high crimes and misdemeanors. Of course, Jerry Ford famously stated that those words mean whatever congress says they mean. But then we don’t want Democrats paying games with the impeachment power.

“Now it is true that Kavanaugh’s situation is different from Scalia and Rehnquist’s. In his screed, he has taken on the Democratic Party establishment, and, properly understood, that should cause him to recuse himself in many cases that will be routinely on the Supreme Court’s docket. That in turn will greatly injure the Supreme Court.

“But I doubt if Kavanaugh will recuse himself, and his failure to do so will do great damage to the Court’s legitimacy, as did its 5 to 4 decision in Bush v. Gore.

“Is there a remedy if Kavanaugh does not recuse himself? Perhaps, but I cannot now point to one with any confidence except to secure preferred political outcomes in 2018 and 2020, and then assess matters when Democrats may hold political remedial power.”

— David Rudenstine, Sheldon H. Solow Professor of Law, Benjamin N. Cardozo School of Law, author of The Age of Deference: The Supreme Court, National Security, and the Constitutional Order (2016, Oxford University Press).

 

What’s at Stake in the Kavanaugh Decision?

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The Senate’s vote on the confirmation of the President’s appointment to the Supreme Court is more than a partisan matter. At stake is the trust of the American public in its most basic institutions.

Reasons to consider irrespective of partisan interests and loyalties:

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First Supreme Court Chief Justice John Jay (1785-1789) — Gilbert Stuart portrait

1. Public confidence in the foundational institutions of the American republic has plummeted. The success of a democratic republic depends on its citizens’ faith in the integrity of the Senate, the Presidency, and, most of all, the U.S. Supreme Court.

2. Any appointment to the Supreme Court should increase rather than erode public confidence in the Court as the final arbiter and interpreter of the law.

512px-Panorama_of_United_States_Supreme_Court_Building_at_Dusk3. The myth of the Supreme Court as standing on the lofty heights of objectivity is a myth, but it is a myth and aspiration worth preserving. Without public trust in the Justices’ commitment and disposition to rule without prejudice, the Rule of Law is viewed as the partisan Rule of Power and Prejudice.

4. Judge Kavanaugh’s behavior during last week’s hearing violated the standards of judicial ethics re: nonpartisanship and calm judicial temperament. Judge Kavanaugh’s appointment will further erode trust in the Supreme Court as an objective arbiter and interpreter of the law.

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Dr. Christine Ford

5. While the President declared publicly to the press that the FBI was free to go wherever it needed — with no restrictions placed on its background check — the White House already had limited the FBI to a handful of people. The President’s statements were duplicitous and deceptive.

6. Names of corroborating witnesses provided during the FBI interviews with the nine people the White House had authorized were ignored. They include high school and college classmates who publicly refute Judge Kavanaugh’s testimony regarding excessive drinking and allegations of sexual misconduct.

7. The majority party’s and the president’s shifts from belief in Dr. Ford’s credibility to public mockings of Dr. Ford and angry allegations of a partisan plot to destroy Judge Kavanaugh raise red flags about a predominantly male Senate’s ability to take women seriously.

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Supreme Court Justice John Paul Stevens official portrait

8. Supreme Court Justice John Paul Stevens (Ret.) yesterday urged disapproval of confirmation based on the nominee’s partisan and aggressive testimony before the Judiciary Committee. Retired Justices don’t do that. Stevens did, for the sake of the Court’s reputation and integrity.

9. Senate confirmation of a Supreme Court nominee who has declared his position that the law prevents a sitting president from being indicted, and who, in his testimony, refused to say he would recuse himself on such a case, gives the appearance of prejudicing the Court in favor of any case that might come before it.

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Yale yearbook photo of Brett Kavanaugh

 

10. Judge  Kavanaugh’s op-ed in The Wall Street Journal is welcome. The admission of inappropriate conduct before the Senate Judiciary Committee last week neither erases the behavior nor qualifies him for appointment to the Supreme Court.

– Gordon C. Stewart, Chaska, MN, October 5, 2018.

The Kavanaugh Nomination and the Founders’ Hope

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512px-Panorama_of_United_States_Supreme_Court_Building_at_DuskMost deeply at stake in the decision regarding Judge Kavanaugh’s confirmation is the further erosion of public trust in the institutions on which this democratic republic was founded. The Supreme Court was the one institution intended to do its work high above the cock fights of special interest, prevailing winds, and partisanship.

256px-Constitution_of_the_United_States,_page_1Democratic republics are built on trust. The American people’s trust in the republic’s institutions was the bedrock on which the U.S. Constitution was framed and adopted. The genesis of American independence and sovereignty lay in a hope yet to be tested: whether the American experiment would meet the test of being a nation “of the people, by the people, and for the people.” The experiment would depend on the American people’s readiness to trust — and the trustworthiness of those institutions.

No institution of government was more important than the U.S. Supreme Court. While the legislative and executive branches are blown by the winds of the American electorate, the Supreme Court was to more objective, above the influence of partisan agendas and popular winds. The Supreme Court was the guardian of the Constitution, the final decision-maker of cases of that came to it from disputed cases in the lower courts.

In previous eras of the American republic, the justices of the Supreme Court worked behind the screen of public scrutiny. As America morphed into an entertainment culture, the justices’ personal lives and views came out from behind the screen of the legal holy of holies onto the stage of public scrutiny. They made speeches. They heard applause. They became either heros or villains. Like the Wizard of Oz, their humanity frailty came was eposed. A sacred hope — the trust in the Court to stand above the cockfights down the in the valley — died.

Judge_Brett_KavanaughTomorrow (Thursday) the Senate Judiciary Committee’s hearing will be at the top of the news. One of the three women who accuse Judge Kavanaugh of sexual assault or abuse will be examined by an prosecuting attorney selected by the ruling party majority. The cameras will then turn to Judge Kavanaugh expected denial, the equivalent of a court rebuttal. Senate Majority Leader McConnell has scheduled a vote Friday morning.

One need not be a partisan to object to the process. One need only think of the bedrocks of the people’s trust in their government’s institutions and our perception of their trust-worthiness. The founders’ hope for the American experiment is at risk because of the very institutions established by the U.S. Constitution.