The outlines of the growing constitutional crisis are clear now. Backing down in the face of major resistance over firing Robert Mueller, Trump took a less direct tack. He nominated to the Supreme Court Brett Kavanaugh, a dishonest [1] partisan intriguer [2] who Trump will task to put a patina of legitimacy on whatever Trump wants to do, including firing the Special Counsel, pardoning himself, or refusing congressional orders. Given the partisan nature of the Court, this would give Trump free rein. And, given the unpopularity of the positions the conservatives have taken [3], it would seriously damage the legitimacy of the Supreme Court—which is already at a low point in public opinion [4]. The last time that the Court got this far out of the mainstream was in the mid-1930s, when the Court had consigned millions of Americans to poverty and hopelessness by striking down elements of the New Deal. It is not remembered much now, but the conservatives then were so alarmed by the reaction their heartlessness generated, FDR’s Court Packing Scheme, that they dropped their resistance to Social Security and the NLRB [5].
Now, there is no chance of removing Donald Trump from office in the immediate future. Unless he is stopped, Brett Kavanaugh may join the Court in the next few weeks—and certainly before the election. Even if we sweep the elections, there will be months during which the American people will be distracted by the holidays and Kavanaugh and Trump will be free to try to shut down any investigations. Even after the new Congress is seated, there is zero chance of having the two thirds majority needed to remove Trump from office.
But there might be a way to paralyze Brett Kavanaugh’s ability to help Trump escape justice. The Court is the frailest institution of government. As the Court Packing episode showed, in the face of intense public pressure, the Court will back down. Failing to do so would mean an end to the cozy, collegial setting they have created. They might even be subject to ethics rules! And that could mean that Ginny Thomas couldn’t go out and politic as she likes, and John Roberts might not get two bites at the same apple.
We must keep up the pressure on the Senate. We must win the election. But let us not forget another option: pressure congressional candidates to sign on to opening an impeachment hearing on Brett Kavanaugh on the basis that he was appointed by a man who is an unindicted co-conspirator in the Cohen plea deal and that he is believed to have obtained one of his judicial appointments through lying to the Senate.
If we can get a number of congressional candidates to sign on to opening an impeachment hearing at the earliest possible opportunity, this could force Kavanaugh to recuse in any case involving Trump or his associates.
The alternatives that remain are not pretty. Assume that Trump is found to have committed crimes—maybe even sold out the country—but Kavanaugh and the conservatives protect him. At that point we are in a full-fledged constitutional crisis.
Pretty much the only non-violent response that remains after a branch of government goes rogue and the other branches don’t rein it in is some kind of general strike. Such a strike could take the form of refusing to serve on federal juries on the basis that the Court is unclean, incapable of serving justice. For decades, believing that conservatives were dealing in good faith, we have tolerated a justice system that selectively imprisons people of color and protects the rich, polluters, and campaign finance corruption. At what point do citizens say that they can no longer prop up courts that serve injustice?
I really do not want to go there. Our courts do lock up a lot of dangerous people. Many of the judges are professional and well-intentioned. Where it fails the most is in unjust laws created by Congress and a failure by Congress to provide legal representation to the poor. It is a system in need of reform, not overthrow.
But when a justice system is repeatedly used to frustrate the will of the majority—as it did in Bush v. Gore, as it did in Citizens United, as it would surely do with Brett Kavanaugh on the Court, we have to—like FDR—think outside of the box.
Starting a movement to impeach Kavanaugh, starting now when candidates are still asking for votes is, I believe, the way to go.
1. Kavanaugh is believed by many Senate Democrats to have lied to the Senate about his involvement in the torture memos.
2. Kavanaugh has been at the center of almost every major Republican misdeed in the last 20 years. One of Ken Starr’s lawyers in “Whitewater,” Bush v. Gore in which he helped train Ted Olsen how to argue before Kavanaugh’s mentor Anthony Kennedy, and placing a legal patina on torture are examples of partisan abuses of power.
3. Citizens United: 75% support overturning the ruling; Retain Roe v. Wade: 70%. Retain same sex marriage: 65%, Support for labor unions: well above 50% and so on. Many conservative positions are deeply unpopular.
4. Gallup shows a drop of “a great deal/quite a lot” approval from the mid-40s in the 1970s to the high-30s in the present decade. While it’s not at all clear why this drop has occurred—David Russell argues in NYU Journal that it’s not due to partisanship but to the narrow background from which judges are drawn—one has to ask the question of what the result to public opinion would be if President Trump were widely viewed as having committed serious crimes and a Justice Kavanaugh, working with the conservative majority, found ways to get him off the hook.
5. William Leuchtenberg, Smithsonian Magazine
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Adding: sadly, most of the discussion in this thread has been reactive and poorly informed. However, one comment by diarist Hummingbird4015 brought to my attention his diary, which I urge people to look at. He says he is a former DoJ trial attorney and that, even though he’s not got any specialized knowledge, he recognizes just how corrupt the appointment of Kavanaugh seems to be. Criminals—and Cohen has alleged Trump is one—do not get to choose the judges who sit on their cases.
Another important comment was by Grille Shelle on the thread below this diary. A lot of people think of impeachment as just the vote itself. But a lot goes on prior to a vote on impeachment. The House committee performs an investigation with subpoena power. That means that documents that Grassley is refusing to demand can be demanded with the force of law behind it.
(There’s also the interesting question of how Kavanaugh paid off his considerable debt in 2017. Maybe he inherited from a rich uncle. But I’d like to see the bookkeeping, and it’s doubtful Grassley will provide it).
Also, impeachment hearings educate citizens. One of the commenters on the thread threw out the word “Rule of Law” as if he understood what it meant. I don’t think he does. The discussion he and I are having is a chance for him to learn something (BTW, I look forward to learning from commenters, but give me facts and evidence, not assertions).
And finally, as I stated in the original diary, impeachment could force Kavanaugh to recuse in any case involving Trump. Not because there is some rule or law that actually forces Justices to recuse, but because the glare of publicity sometimes restrains people from doing the most outrageous things.
So don’t think of impeachment just in terms of whether we can remove Kavanaugh. We probably can’t, which is why defeating the nomination would be much preferable. But we might be able to keep him from protecting Trump.
Update2: Another diary on this topic has been produced by Freelance Escapologist. That brought to mind another point that has been missed by commenters on this thread: the standard for removal of judges is not treason, bribery, or high crimes and misdemeanors, as it is for presidents.
Judges are allowed to serve only on good behavior. Lying to the Senate to get a judgeship, as Kavanaugh apparently has done, is not good behavior.