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The Elevation of Brett Kavanaugh

What effect will the presence of two known liars sitting as justices on the U.S. Supreme Court have on decisions made by that court, especially, but not exclusively, in criminal cases?

Brett Kavanaugh

 

Brett Kavanaugh, then-nominee to the U.S. Supreme Court, testifies before the Senate Judiciary Committee on Capitol Hill Sept. 27, 2018. (Photo: Jim Bourg-Pool/Getty Images)

No one is such a liar as the indignant man."
—Friedrich Wilhelm Nietzsche, Thus Spake Zarathustra

Defense lawyers are wondering what the impact of Brett Kavanaugh’s elevation to the U.S. Supreme Court will be on criminal law in the United States. The question is not purely academic. What we now know is that, thanks to the manipulations of Mitch McConnell, whose appearance has caused some to refer to him as “Chin,” (notwithstanding their normal practice of eschewing ad hominem attacks) and Simpering Susan’s 40-minute defense of her unprincipled vote, we now have two confirmed liars sitting as justices.

To understand how this came about, it is necessary to recall the last year of the administration of Barack Obama. President Obama, as readers will recall, was the last man to occupy the White House whom we could call “president” without gagging. The events that gave rise to Brett’s elevation were born in 2016.

In February of that year, Justice Antonin Scalia died. As contemplated by the Constitution, in March of that year, President Obama nominated Merrick Garland, a judge from the D.C. Court of Appeals, to serve as Justice Scalia’s replacement. The next step in that process was for the Senate to advise and consent to his appointment. If it declined to consent, the nomination failed. If the consent was given, the appointment was completed and the new justice sworn in.

In an unprecedented move, Chin refused to permit the Senate to debate the nomination. Thus, he asserted a right that no majority leader in the Senate had ever before asserted. He decided he alone could veto the nomination of any individual to the Supreme Court or any other federal court, if it suited him, by refusing to permit his co-equals in the Senate to consider the nomination. As a result, Garland’s nomination was never considered.

Chin apparently had a better sense of how the election that followed in 2016 would come out, than did much of the rest of the country. Had Hillary Clinton become president, Chin’s failure to act would have had no consequence insofar as the makeup of the court was concerned. As it happened, the unimaginable and unexpected occurred, and before the first year of the new administration had ended, the Republican-controlled administration had caused to be installed on the U.S. Supreme Court a new conservative justice whose appointment ensured that the court would continue to move sharply to the right.

That was not, of course, the only good fortune bestowed on the White House fool in his attempt to continue to move the court in a right-wing direction. The next did not involve the death of a justice. It involved a retirement.

In June of 2018, Justice Anthony Kennedy announced his retirement. For reasons not publicly disclosed, Justice Kennedy, who had enjoyed being the swing vote on the court in many cases, decided to cast his last swing vote in the most important decision he would ever make while serving on that court. He decided to retire before the 2018 elections. By doing that, he guaranteed that even if the Democrats regained control of the Senate, they would not be able to select, as his successor, a person more reliably liberal than he, because the vacancy created by his resignation would have been filled before the election took place. He guaranteed that his successor would be a person favored by the extreme right-wing in the United States. And it was Justice Kennedy’s decision to announced his retirement when he did that led to Brett’s appointment. And that leads us to the question posed at the beginning of this discussion.

What effect will the presence of two known liars sitting as justices on the U.S. Supreme Court have on decisions made by that court, especially, but not exclusively, in criminal cases? The question is important, since both Justices Clarence Thomas and Kavanaugh were well served by the lies they told during their confirmation processes. The question therefore is: Will they, having been well served by their lies, be more sympathetic to criminal defendants who were convicted because of lies they had told in the activities that led to their convictions? It is entirely possible that those kinds of defendants will find at least two Jjustices who, having been well served by lies in their professional careers, will be sympathetic to others who used lies to advance themselves. Time will tell.

(As a totally irrelevant aside to this column I cannot resist observing that Leslie Stahl, in her unbelievably inept interview with the White House fool on "60 Minutes" on Oct. 15, 2018, may have done more to help Republicans in the upcoming elections than any absurd comments from the mouth of the fool, of which there were many, and none successfully challenged by Leslie. CBS and "60 Minutes" were a disgrace to journalism.)

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Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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