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Packing the Supreme Court in the 21stCentury

Photo Source Phil Roeder | CC BY 2.0

The Senate hearings on the nomination and appointment of Brett Kavanaugh to the U.S. Supreme Court was a classic “show trial” – that almost got derailed by Christine Blasey Ford’s unexpected and courageous testimony.

If recalled at all, “show trials” were well-choreographed trials instigated by Joseph Stalinbetween 1936 and 1938 against those who represented challenges to his increasing autocratic control over the Soviet Union.  Those targeted included surviving Old Bolsheviks loyal to Lenin as well as followers of Trotsky, members of the Right Opposition and the former leadership of the Soviet secret police.  Those not executed were exiled to die in Siberia.

Until Ford’s appearance, Kavanaugh’s non-trial nomination before the Senate Judiciary Committee was an all-American kabuki drama.  It drew comparisons to such earlier theatrical productions as “Showdown with Bork” and “Thomas’ Work-a-Day Porn,” both sell-out performances but with very different outcomes.

This year’s nominee was duly questioned about his beliefs concerning “settled law,” his role in the impeachment of Pres. Clinton, service in the Bush administration and his questionable record on the Court of Appeals.  In keeping with the art of non-answering perfected by Supreme Court nominees, Kavanaugh artfully avoiding directly answering any challenging questions.

Both Republicans and Democrats performed their well-scripted parts with true professional stagecraft.  Like innumerable prior Senate confirmation hearings, nothing that would discredit the nominee was seriously addressed.  The nominee’s past was artfully camouflaged as thousands of pages of revealing documents were kept hidden.  And then Mrs. Ford, PhD, appeared.

Kavanaugh was to be a shoo-in. He had been vetted by the top conservative legal authorities, the Federalist Society and Heritage Foundation.  Ford’s appearance and testimony stunned the nation and disrupted the well-planned theatrical performance orchestrated by the nomination’s managing troika – Trump, McConnell and Grassley.  In an effort to appease the widespread public outrage and contain the unexpected disruption caused by Ford’s heartfelt testimony, the troika agreed to an FBI “investigation” of the alleged – and increasing number of — accusations against Kavanaugh.

In keeping with the spirit of a show trial, the troika restricted the FBI investigation to a quick-and-dirty review so that nothing confirming Ford’s claim or any additional revelations about Kavanaugh’s past would be revealed.  In order to effectively manage the outcome, Senators were restricted to viewing only the FBI report’s executive summary, not the original source documents.  And they could only review the summary in a secure room without a means to copy it as if it was a “national security” document.

According to media reports, the executive summary noted that 11 people were contacted to interview and 10 were followed up on; eight were related to Ford’s allegations and two were from Deborah Ramirez’s allegations.  Senators received 12 detailed 302 reports from the FBI on the interviews and were provided supporting materials that were cited by witnesses in the interviews.  The executive summary concludes: “The supplemental background investigation confirms what the Senate Judiciary Committee concluded after its investigation: there is no corroboration of the allegations made by Dr. (Christine Blasey) Ford or Ms. Deborah Ramirez.”  It did not examine Kavanaugh’s drinking habits.

While the FBI’s executive summary fulfilled the publicity requirements of a show trial, it did little to address the underlying suspicions shadowing the nominee.  Senator Democrats were less than enthusiastic about the FBI investigation.  Bob Menendez (D-NJ) called it a “bullshit investigation.”

Elizabeth Warren (D-MA) cut to the chase: “We know what this is about, it’s about power.” Assessing the nomination procedure, she warned, “I watched livid men, powerful men who tried to help another powerful man make it to an even more powerful position. This is about hijacking a democracy.”  Warren added, “So let’s be clear about this: I am angry, I own it. I am angry on behalf of women who have been told to sit down and shut up one time too many.”

Assessing the FBI executive summary, Warren observed:

Senators have been muzzled. So I will now say three things that committee staff has explained are permissible to say without violating committee rules. …

One: This was not a full and fair investigation. It was sharply limited in scope and did not explore the relevant confirming facts.

Two: The available documents do not exonerate Mr. Kavanaugh.

And three: The available documents contradict statements Mr. Kavanaugh made under oath.

She concluded, “I would like to back up these points with explicit statements from the FBI documents – explicit statements that should be available for the American people to see. But the Republicans have locked the documents behind closed doors.”

And then there was Susan Collins (R-ME), the queen of deception who orchestrated her performance with Academy-Award-winning precision.  History will remember her as the most disgracefully Kavanaugh backer.  She played the show-trial media circus like a shrewd yoyo master, claiming a heartfelt identification with Ford but at the end dutifully distorting the nominee’s legal record so she could join her Republican team-mates in securing his appointment.

After Kavanaugh’s appointment, the Republican nomination troika paraded before the cameras on Fox and other media outlets with broad smiles, took a well-deserved victory lap celebrating their triumph.  Confronting unexpected disruption, they successfully put another arch-conservative on the Court.

Trump, as commander-in-chief of the campaign, felt a special vindication.  He initially raged against the unexpected disruption to Kavanaugh’s well-planned appointment when word of Ford’s accusation was first made public, then placating the mounting popular discontent by calling Ford’s testimony “compelling,” then – after the appointment – returned to his standard bully-boy stance and mocked her.  His words are memorable:

“‘How did you get home?'” Trump said. “‘I don’t remember.’ ‘How’d you get there?’ ‘I don’t remember.’ ‘Where is the place?’ I don’t remember.’ ‘How many years ago was it?’ ‘I don’t know.'”

“‘What neighborhood was it in?'” he continued, as the crowd cheered and clapped. “‘I don’t know.’ ‘Where’s the house?’ ‘I don’t know.’ ‘Upstairs, downstairs, where was it?’ ‘I don’t know, but I had one beer.’ ‘That’s the only thing I remember.'”

In 1937, Pres. Roosevelt faced a decidedly Republican Court that had overturned many of his New Deal programs.  In an effort to obtain more favorable rulings, he sought to increase the Court from nine to as many as 15 justices through a legislative scheme known as “packing.”  The Constitution does not specify the number of jurists to serve on the nation’s highest court.  During much of the nation’s first century, the Court had five, seven and even ten jurists.  Following the Civil War, it was stabilized at nine.  However, FDR’s effort proved unnecessary as two pivotal justices switched sides and backed key New Deal legislation.

The Republican have adopted a more sophisticated scheme to pack the Court with arch-conservatives and they’ve been successful. They effectively blocked Pres. Obama nominee, Merrick Garland, from filling Judge Scalia’s seat and succeeding in placing Neil Gorsuch and Kavanaugh on the Court.  Sadly, it’s anyone’s guess how many more Supreme Court show trials Americans will have to endure during the Trump’s presidency.

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David Rosen is the author of Sex, Sin & Subversion:  The Transformation of 1950s New York’s Forbidden into America’s New Normal (Skyhorse, 2015).  He can be reached at drosennyc@verizon.net; check out www.DavidRosenWrites.com.

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