If you act now…

If you’ve watched any late night or early morning TV, you’ve heard vendors pitching some product.  They often end their pitch with the words, “If you act now…” and offer some additional incentive to anyone who bought the product within the next hour or so.  Some of these TV pitches may be fine products, but many leave a lot to be desired, which is why they’re being pitched late at night or early in the morning when resistance is down.  The words “if you act now…” serve as the carrot, while strong attestations in a deep baritone warn, “not sold in any stores,” so that if you don’t act now, and forget the contact information, you’ll never get this chance again.  I assume that this technique works wonderfully in pushing product, especially product that you might not purchase with more time, more rest, more consideration.

I have to admit that’s the feeling I often get when the Republican Congress wants to push product on their colleagues or on the American people.  I’m getting that vibe quite strongly in the Brett Kavanaugh matter.  Rather than giving this confirmation sufficient time to be considered, and for the voluminous amount of material Judge Kavanaugh has written, quite a bit of it as a partisan hack for Republican politicians, or in a political cause (the politically motivated pursuit of Bill Clinton, for instance, or the Florida recount in 2000), to be read and mulled and processed, so that senators can fulfill their constitutional obligation, which is to advise and consent on the nomination, as befits any appointment, but certainly any appointment that is a lifetime appointment and can have effects for a generation.

When the Founding Fathers, and especially the framers of the Constitution, set up the Judiciary as an equal and separate branch of the government, they did so, in the hopes that the Judiciary could serve as a check on the excesses of the executive and legislative branches.  The justices of the Supreme Court were given lifetime appointments, in the hopes that, freed from reliance on either the executive or legislative branch for continued employment, they could be truly free and independent.  For those who claim to be originalists, that was their goal, and it’s a good goal.

But from what I can see of the current “originalists” on the court, they do not embody a truly independent mind or spirit.  They do not truly examine laws and procedures to see if rights are being observed and the constitution is being adhered to.  Rather they are pushing an agenda that is more in accord with the 1890s than the 1790s or the 1990s.  They are pursuing an agenda which defers to billionaire class, a class largely following the example of the late 19th c. industrialists, who made their money often by shady business practices, often inhuman treatment of workers, and total disregard of any effect their practices would have on the environment.  For those billionaires there was no concern for clean water, or clean air, or a healthy workforce.  For them, all that mattered was their own profit and their own privileges, both to be guarded jealously.  It combined the worst elements of capitalism with the worst elements of feudalism.

And if we look at the opinions of the current “conservative” members of the court, they show a tremendous deference to the wealthy as opposed to the poor, to the powerful as opposed to the disenfranchised, to their people as opposed to the people.  I’ve heard several candidates compare themselves to baseball umpires, simply calling balls and strikes.  If so, they are largely calling balls on behalf of the rich and powerful, and strikes on those who are not, and calling out those who might want to unionize and strike.

Will Judge Kavanaugh be any different from the current conservative group?  Based on what writings of his have been available to the public, he likely will be worse.  He will certainly be a lot more conservative than Justice Kennedy, and probably more conservative than Chief Justice Roberts.  This will cheer those among the wealthy who value their money and power more than the rights of others, for he will certainly side with them.  For those who aren’t wealthy, don’t have privilege or influence, the result will not be good.

No matter what he’s said to the Judiciary Committee about settled precedent, he really doesn’t care about that.  He’s on the record as saying that Roe was decided badly, that US v. Nixon was decided wrong, and that bad precedence (in this case, precedence he disagrees with) can be overturned.  As state legislatures in some states pass laws allowing thousands in their states to be disenfranchised, they will have a friend in Kavanaugh.  As some states fight against the Affordable Care Act, they will have a friend in Kavanaugh.  As some states pass laws making it impossible or nearly so for women to get access to birth control, they will have a friend in Kavanaugh.  With Kavanaugh on the court, life will likely get harder for the majority of Americans, but not the wealthy, not the powerful.

And what about the President who nominated him?  Clearly Mr. Trump wants there to be Justice Kavanaugh to undercut any attempts to put a check on him, and he will get what he wants.  For all those who claim they are originalists, I call their bluff.  If there is one thing the Founding Fathers (all the Founding Fathers) hated and feared, it was unchecked power in the hands of any man (they were not forward thinking to support equal rights for all, irrespective of gender or race).  In the 18th c. those visionaries were unable to imagine a time when wealth could be concentrated so much in the hands of the very few, and so could not imagine the undue influence that the super-wealthy have on our politics.  I feel that they would be horrified by some of the pronouncements on behalf of corporate America.  As to the court giving nearly unlimited power to the president, I know they’d be horrified.  But that’s what they could expect with Kavanaugh.

Kavanaugh’s deference to presidential authority and power, a deference he did not display when Bill Clinton was president and he was a more than eager soldier in Republic efforts to bring President Clinton down, is the one area where I think we can safely assume the horror, disgust and anger of the Founding Fathers, and that is something EVERY senator who is thinking about confirming this man at this time should consider before consenting to the nomination.

As to aspects of Mr. Kavanaugh’s personal life, I’d rather not get into that mess now.  But as to his fitness for this office, he must be judged unfit, not because he doesn’t have the legal credentials — he has those in spades, but because a judge is more than the law school he went to, or the grades he got.  There are grave doubts that all would receive a fair hearing from him; the disadvantaged would not be heard, the advantaged would have one more advantage, and the President would simply get a pass.

One final note: it is clear that Judge Kavanaugh has lied to the Judiciary Committee before.  He may have lied to the current committee as well.  For most people, falsehoods uttered in pursuit of a job result in failure to obtain employment, or the termination of that employment.  For a judge, and for one who wants to sit on the highest court in the law, clearly any falsehoods uttered should be considered as disqualifying.

I hope that a handful of Republican senators have the decency to do the right thing here.  Just once, I hope they can resist their corporate overlords and do the right thing.  I remain hopeful.

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