March 16, 2021

Today, I’m watching some stories that have immediate significance, but also indicate larger trends.

First, Senator Sheldon Whitehouse (D-RI) has asked the Justice Department, now overseen by Attorney General Merrick Garland, to look into the unusual circumstances through which Brett Kavanaugh’s large debts disappeared before his nomination to the Supreme Court. While this question is important to understanding Kavanaugh’s position on our Supreme Court, it is more than that: it is part of a larger investigation into the role of big money in our justice system.

Last May, Whitehouse, along with Senator Debbie Stabenow (D-MI) and Senator Chuck Schumer (D-NY), released a report titled “Captured Courts: The GOP’s Big Money Assault On The Constitution, Our Independent Judiciary, And The Rule of Law.” It outlined how the “Conservative Legal Movement has rewritten federal law to favor the rich and powerful,” how the Federalist Society and special-interest money control our courts, and how the system benefits the big-money donors behind the Republicans.

On March 10, Whitehouse began hearings to investigate the role of big money in Supreme Court nominations and decisions. Aside from Chief Justice John Roberts, every Supreme Court justice named by a Republican president has ties to the Federalist Society, a group that advocates an originalist interpretation of the Constitution, which prohibits the use of the courts to regulate business or to defend civil rights.

So while it is the Kavanaugh story that is getting media attention, the longer story is about whether our courts have been bought.

Another story on my list is that Senate Minority Leader Mitch McConnell today warned Democrats in the Senate not to get rid of the filibuster to pass voting rights legislation. “Nobody serving in this chamber can even begin, can even begin, to imagine what a completely scorched-earth Senate would look like,” he said. But, in fact, they can, because it was McConnell himself who got rid of the filibuster to hammer through Trump’s Supreme Court nominees, and who pushed through Trump’s 2017 tax cuts, which benefited only the very wealthy, by using a technique that avoided the filibuster.

McConnell warned that, without the filibuster, he would defund Planned Parenthood, pass anti-abortion legislation, and create national concealed-carry gun laws. But all of these measures are quite unpopular in the nation, so it’s not clear that these are threats the Democrats want to avoid. It’s entirely possible that permitting the Republicans to push through those measures would hurt the Republicans, rather than the Democrats.

Democrats are talking about reforming the filibuster because they are keen on passing H.R. 1, the voting rights act that would defang the voter suppression measures Republicans are pushing in 43 states. If those measures become law, it will be hard for the Democrats ever again to win control of the government, no matter how popular they are. H.R. 1 will level the democratic playing field, so both parties compete fairly. But fair elections will disadvantage Republicans, who have come to rely on voter suppression to win.

Hence McConnell’s threats.

For his part—in a third story I’m watching-- Biden is reaching out to Republicans with an infrastructure package. Republicans were caught wrongfooted when they all voted against the enormously popular American Rescue Plan, and he is offering them an infrastructure bill at the same time Democrats have gotten rid of a ban on so-called “earmarks,” local spending funded in a federal package. Earmarks tend to increase bipartisanship by enabling lawmakers to go home to their constituents with something tangible in hand in exchange for their vote on a bill. Infrastructure spending is popular among voters in both parties, so this approach might break the united front of Republican lawmakers to oppose all Democratic policies.

Finally, I am fascinated by the Democratic-led, bipartisan move among congressional leaders to repeal the 2002 authorization for the Iraq War. President Biden has called for a “more narrow and specific” authorization of military force (AUMF), and 83 Democratic lawmakers and 7 Republicans agree. Their dislike of the AUMF comes from its expansion under former president Trump, who used it to justify the assassination of Iranian general Qassem Soleimani—an official from a country with which we are not at war—saying that Soleimani was undermining efforts to stabilize Iraq’s government. This was an expansion of military action that legal analysts think might well have been illegal.

In the past, Congress had justified AUMFs with the idea that they could control the president by controlling the money behind military actions, but Trump commandeered money to build his wall by declaring a national security emergency, buying time to do what he wished by forcing Democrats to take him to court to stop him. This opened up concerns that the power of the purse was really no power at all if a president chose to undermine it.

The willingness to hand to the president the power to engage us in military action illustrates the dangerous growth of power in the executive branch. I will follow with interest whether Biden’s interest in returning us to the traditional forms of the Constitution extends to reducing the power of the president to assume Congress's role in taking us into war.

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Notes:

https://www.esquire.com/news-politics/politics/a35853157/sheldon-whitehouse-brett-kavanaugh-debts/#

https://www.democrats.senate.gov/imo/media/doc/Courts%20Report%20-%20FINAL.pdf

https://www.scotusblog.com/2021/03/senate-judiciary-holds-hearing-on-dark-money-and-supreme-court/

https://thehill.com/homenews/senate/543404-mcconnell-offers-scathing-scorched-earth-filibuster-warning

https://www.rollcall.com/2021/03/15/house-democrats-want-fast-repeal-of-2002-iraq-war-authorization/

https://www.npr.org/2020/01/04/793412105/was-it-legal-for-the-u-s-to-kill-a-top-iranian-military-leader

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