Yes, the Brett Kavanaugh hearings got under way this morning. Most of the morning was taken up with Democrats protesting against all the Kavanaugh documents that have been withheld, especially from his years working in the White House. Sen. Corey Booker estimated that 90 percent of what the Senate needs to see has been withheld. Those arguments will continue, but don’t hold your breath for any big concessions from the White House Republican leadership of the Judiciary Committee.
But, speaking of the White House, Democratic Sen. Sheldon Whitehouse of Rhode Island late this morning delivered a withering attack on the idea that the Supreme Court is above partisan politics. His argument was that the confirmation of Kavanaugh will lock in place the domination of the court by a bare five-justice majority of Republican nominees who, according to Whitehouse, are reliable lickspittles for corporate America, delivering a powerful indictment of what he called “The Roberts Five,” which refers to Chief Justice John Roberts and the four other justices appointed by Republican presidents.
“When does a pattern prove bias?” Whitehouse asked rhetorically. He analyzed the cases in which the five Republican-appointed justices have voted together against the four appointed by Democratic presidents. He found 80 of them during Roberts’ chiefship, and said that in 73 of them (that’s 92 percent of those cases) “there’s a big Republican or partisan interest involved. And the result, by a 5-4 vote of Republican justices against the four Democrats, the Republican partisan or corporate interest has won “every damn time.”
The things that Whitehouse said Republicans supposedly care for in Supreme Court cases – judicial modesty, originalism, respect for precedent – all go out the window if they come up against corporate interests or Republican partisan interests. The litany of “Roberts Five” decisions explains “why the big Republican interests want Judge Kavanaugh on the court so badly.”
He then enumerated the cases in which either the partisan political interests of the Republican Party (for example, gerrymandering cases, plus Citizens United, which destroyed laws designed to keep corporate money out of politics), cases advancing the conservative/Republican social agenda (for examples, cases restricting right to abortion) or the financial interests of Republican corporate allies are at stake. Some examples: cases helping big business “bust unions,” decisions that “help corporate polluters pollute.” In 100 percent of cases in which the U.S. Chamber of Commerce took a position by filing a brief or other such action that were decided 5-4, the side favored by the U.S. Chamber won 5-4, with the Roberts Five providing all five votes to the Chamber’s side.
Bear in mind, this was Whitehouse’s opening statement, so Kavanaugh had no opportunity to reply. He sat, fairly stone-faced, occasionally making a note.
And parts of Whitehouse’s speech got pretty personal, as he portrayed Kavanaugh’s career as a virtual audition to big business and social conservative organizations to put him in the position he now occupies, as the nominee of a Republican majority to secure the Roberts Five for the next round of 5-4 rulings.
I could cite some of those Kavanaugh rulings, but I swore I would keep this short and urge you to read the full text of Whitehouse’s powerful statement, which is right here.
I confess, I have not previously followed Whitehouse’s Senate career closely. But he knocked my socks off this morning.