To Understand The Kavanaugh Kraziness, Look At The Courts' Role In Approving Or Blocking Major Policy Initiatives
/By the time you read this, you almost certainly already know that the New York Times chose this past Saturday to publish an op-ed by authors of a new book about Brett Kavanaugh, raising a new allegation of alleged improper sexual conduct by Kavanaugh from his days at Yale more than 30 years ago. By the next day, the Times had been force to concede that the op-ed had omitted to state that the alleged victim of the event had told her friends that she did not remember such a thing. Moreover, the authors of the book and op-ed had not even interviewed the alleged victim. Would you have ever thought that the august New York Times would have stooped to that kind of level?
I don’t know what your first thought was on learning of this, but mine was, they must have information that Justice Ginsburg’s medical prognosis is not very good. You may also have seen the Supreme Court’s statement issued on August 23, announcing that Justice Ginsburg had just completed a three-week course of radiation therapy for a new tumor on her pancreas. The statement says that the Justice’s treatment was “definitive” — a term seemingly selected to convey upbeat confidence while clearly not being the equivalent of a clean bill of health. It would be rather surprising if the Times doesn’t have some sources with more particularized information on this one.
Could control of the Supreme Court really be worth the damage that the Times (and others, including multiple contenders for the Democratic presidential nomination) are now inflicting on themselves? Many point to the issue preservation of the constitutional right to abortion as being the principal driver of desperate progressive efforts to stop nominations of conservatives like Kavanaugh to the Supreme Court; and I would not want to minimize that issue as an important factor. But look also at what has developed in this modern era to be the ever-increasing role of the federal court system in either approving or blocking most every significant policy initiative coming out of the White House. It would not be too extreme to say that a Republican President could easily see half of his significant policies blocked by the court system — often with the connivance of a hostile permanent bureaucracy — unless he has a favorable Supreme Court. To put it another way, between control of the Supreme Court and of the bureaucracy, the progressive faction can mostly neutralize any presidential election that goes the wrong way. Without control of the Supreme Court, not so much.
In the onrush of daily events, it’s easy to lose track of the big picture. So let me give you a small round-up of some of the more important of Trump’s policy initiatives where the Supreme Court has played or is playing a critical role. I’m not going to go into detail on the merits of these matters (way too complicated for this post), but mostly just give some procedural history to illustrate the very central role played by the Supreme Court.
Travel ban. Do you remember President Trump’s so-called “travel ban”? That was a series of executive orders that Trump issued during his first year in office in 2017, imposing a hiatus on visas for people from a somewhat varying list of countries known for violence and disorder, most but not all of them majority Muslim, until additional procedures for vetting could be implemented. Various progressive groups promptly sued after the issuance of each successive order, cynically forum-shopping their cases to places where they could likely score a sympathetic progressive judge to issue a nationwide injunction. The key case that got the key nationwide injunction against the third and ultimate order was brought in the District of Hawaii by the State of Hawaii and its two co-plaintiffs the ACLU (based in New York) and the Southern Poverty Law Center (based in Montgomery, Alabama). They drew Obama-appointed Judge Derrick Watson, and got their injunction. After the Ninth Circuit affirmed, the Supreme Court reversed in Trump v. Hawaii in June 2018, and the third order then took effect.
Clean Power Plan. The so-called Clean Power Plan was one of those massive regulations issued by the Obama administration seeking to remake the U.S. economy. This one, emanating from the EPA toward the end of the Obama years in August 2015, took a very aggressive approach to the Clean Air Act to seek to force the closure of all electric power plants using coal, and potentially those using any other fossil fuel. A group of States led by West Virginia (whose coal industry faced an existential threat) challenged the regulation in the D.C. Circuit. The plaintiff States initially sought, but did not get, a stay of the regulation from the D.C. Circuit. They then sought the stay from the Supreme Court, which granted it in early 2016. But stay of implementation during litigation of the rule’s validity did not stop that litigation from going forward, and the D.C. Circuit ordered that briefing be completed. Then the Circuit took the very unusual step of deciding that the case was so important that it would be heard en banc by the entire court. (A cynic might say that that move was designed to eliminate the possibility that a randomly chosen panel of three judges might contain a conservative majority. Remember that this occurred at a time when everyone was expecting Hillary to be the next President and to proceed with implementation of the CPP unless it was enjoined by the courts.) The oral argument before the full Circuit actually took place in September 2016, shortly before the election that brought in Trump. But after the election the Trump administration quickly made it clear that the CPP was going to be withdrawn and replaced, leaving the Court of Appeals in a position only to be embarrassed if it upheld what was soon to be a moot Obama policy. The D.C. Circuit repeatedly delayed issuing its decision, ultimately extending for a full three years after argument. The Trump administration’s replacement for the CPP (known as the Affordable Clean Energy rule) was finally published in the Federal Register on July 8, 2019. Shortly afterwards, all parties joined a request that the case in the D.C. Circuit be withdrawn a moot. The order granting that request was just issued today. Here is a link to all papers in that case.
Border wall funding. Frustrated by his inability to get a specific appropriation of funds from Congress to fund the building of a border wall, President Trump earlier this year declared a state of emergency on the Southern border, under which he asserted authority to divert appropriated moneys from certain Defense Department projects to fund wall construction. Plaintiffs including the ACLU and the Sierra Club (what exactly is their interest in this controversy?) went to one of their favorite forums — the Northern District of California — to seek their injunction, and got it in June from an Obama appointee named Haywood Gilliam. On July 26 the Supreme Court stayed the injunction, allowing the government to use the funds to build the wall while the dispute proceeds. Presumably, after a tour through the Ninth Circuit (where Judge Gilliam’s injunction will almost certainly be affirmed), the case will return to the Supreme Court for the only decision that counts.
Asylum applications. Meanwhile on July 16 the Trump administration (Departments of Justice and Homeland Security) issued a new policy that asylum applications from migrants would not be accepted if the migrants had passed through another country on the way to the U.S. without first applying for asylum there. Within days, Jon Tigar, another Obama-appointed judge in the Northern District of California (that district again!) had issued a nationwide injunction against implementation of the policy. But not so fast! On September 11, the Supreme Court had once again stayed the injunction while the matter proceeds through the courts (of course, once again including the Ninth Circuit), before it gets back to the Supremes some time in a year (or two or three).
And there are several more examples like these. Let’s face it: the FBI’s and CIA’s Russia hoax “insurance policy” strategy didn’t pack nearly the wallop in stopping a Republican President that having Merrick Garland on the Supreme Court would have packed.