MAKING THE CONFIRMATION SAUSAGE

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In 2006, President George W. Bush nominated Samuel Alito to take Sandra Day O'Connor's seat on the Supreme Court.  Under Senate Rules then extant, 41 Senators could block a vote on confirmation and there were 44 Democrats. In the run-up to the confirmation vote,  President Bush issued a statement saying a group of former Alito clerks with "a wide range political views" supported the nomination. He added:

"The Senate has a constitutional responsibility to give every judicial nominee an up or down vote."

The Democrats did not exercise their block-the-confirmation-vote muscle. They allowed the Senate to give Alito an up or down vote, and he was confirmed on January 31.

But that was then. Bill Frist soon thereafter resigned as Senate Majority Leader, and now Mitch McConnell and his klatch of Senate Republican followers are in charge.

In 2016, McConnell destroyed any remaining vestiges of the myth that the Supreme Court was above politics. He ignored the Senate's "constitutional responsibility to give every judicial nominee an up or down vote," and refused to allow an up or down vote on President Obama's nominee Merrick Garland. The excuse? McConnell said it was inappropriate to vote on confirmation before the November elections, and we should wait until after the elections so that "The American people should have a voice in filling this vacancy.''

In July, 2018, minority President Trump nominated Brett Kavanaugh to the Supreme Court. With the possibility (however slim) of a "blue wave" overcoming the tiny Republican majority in the Senate, McConnell flip-flopped on his views of confirmations in election years. Instead of "giving the people a voice in the filling of this vacancy,'' he announced his intention to schedule a vote on the confirmation of Kavanaugh before the November elections. So much for the "voice of the people."

"Disgraceful", you say? These days, the only "disgraceful" conduct is being out of power. For those who believe the Republican conduct in the Senate "shameful'' and "deplorable," fuhgeddiboudit, those words are no longer in the Republican dictionary. They went the way of "hypocrisy."

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A few more thoughts about the confirmation process:

Selling the confirmation of a Supreme Court Justice has a lot in common with selling dog food and toasters on Amazon: the proponent provides prospective consumers with positive statements from those who have first-hand experience with the product.

When I saw a report that Kavanaugh's former clerks were publically praising the nominee, it rang a bell. Alito's name came to mind, so I went back and looked.

When George Bush nominated Circuit Judge Alito to replace Sandra Day O'Connor, Alito's former clerks sprang into action. Two themes were pervasive: i) the clerks said they were "politically diverse, Democrats and Republicans," and ii) the clerks assured the Senate that their judge had "always applied precedent faithfully," "never pre-judged a case or ruled based on political ideology,'' "always applied "controlling legal authority to the facts of each case after full consideration of all relevant legal arguments,"  and "where Congress has spoken, he rejected efforts to advance policy goals not adopted by Congress.''

So what did Supreme Court Justice Alito do once he was confirmed? A small sample: He ignored precedent and voted to place restrictions on abortion, he voted to overturn a Supreme Court precedent that protected the finances of municipal unions, he voted to strike down Congress's clear provisions providing employees with contraception coverage under the Affordable Care Act, and he voted in favor of effectively repealing sections of the Voting Rights Act passed by Congress because he did not think they were any longer necessary.

To allay any doubt about my characterizations of Alito' s rulings, I mention some details of the first, and I think the most outrageous one, on the above list: a case called Gonzales v Carhardt:

In the year 2000, the Court, by a 5-4 vote, struck down a Nebraska statute that banned an abortion procedure in late stages of pregnancy. The bill's sponsors had given it the provocative title "The "Partial Birth Abortion Act." The statute's terms were absolute, and made no exceptions, even for instances where physicians determined the procedure was necessary to protect the mother's health.

In the year 2003, Congress passed, and Bush II signed, a federal statute that was identical to the unconstitutional Nebraska statute. The federal statute was thereafter ruled unconstitutional by three circuit courts, but when it reached the Supremes, there was a new player on the Court: Justice Sandra Day O'Connor, who voted with the majority six years earlier, had been replaced by Samuel Alito, who, with his four new buddies, employed post-truth sophistry, and ruled that the federal statute was constitutional! The Court's reasoning was so blatantly dishonest that Justices Scalia and Thomas, (who nevertheless joined in the result) openly criticized their conservative colleagues for their failure to admit they were upending the six-yr-old precedent.

So much for the testimony of Alito's former clerks.

So what are we to believe when we now see a covey of Brett Kavanaugh's former clerks  (which includes Justice Alito's son) writing a letter to the Senate, assuring that:

"Our ranks include Republicans, Democrats and Independents," and that Kavanaugh "rereads every precedent," "masters every detail," and he listens carefully to the views of his colleagues?

No surprise here. As were the Alito clerks, the strait-jacketed Kavanaugh clerks are now pressed into service as tools in a slick advertising campaign. The campaign is coordinated by a D.C. firm called CRC Public Relations, an organization that represents, among others, the Federalist Society which put Kavanaugh's name on the approved list. With the ink not yet dry on the nomination, CRC was emailing reporters with statements from Kavanaugh clerks about "doing justice in every case," including a statement from a former clerk working for a firm that represents anti-abortion groups, who described the nominee as "exemplary, brilliant, principled, and faithful to the text."

The CRC PR swampers offered to set up clerk interviews for reporters. I wonder if any member of the press accepted the offer and asked a clerk about the Constitutional principles involved in Kavanaugh's effort to deny a seventeen year-old prisoner of HHS the right to end her unwanted pregnancy, on the ground that, as Judge Kavanaugh put it, "the federal government has a permissable interest" in her fetus.