Conservatives’ judicial coup spurs outrage, merits action

The Supreme Court’s legitimacy is in tatters. Conservative forces in the country, led by the Republican Party, have completed a judicial coup, decades in the making.

Republicans rushed Brett Kavanaugh’s confirmation to avoid the consequences of an election. They aborted a full investigation because they feared what it might find. They made themselves complicit in a presidential attack on Christine Blasey Ford, a brave woman who asked only that her case against Kavanaugh be taken seriously.

After all these outrages, there’ll be calls for civility, as if the problem is that people said nasty things. But this power grab cannot be passively accepted in the name of politeness. The causes and consequences of what just happened must be acknowledged frankly.

The conservative struggle for the court began in the 1960s, but it hit its stride in the Bush v. Gore ruling on the 2000 election. Five conservative justices violated the principles they claimed to uphold on states’ rights and the use of equal-protection doctrine to stop a vote recount in Florida requested by Al Gore, the Democratic nominee, and make George W. Bush president.

The pro-Bush justices made abundantly clear they were grasping at any arguments available to achieve a certain outcome.

Bush then appointed two staunch conservatives to the court: John Roberts (a Bush foot soldier in Florida) and Samuel Alito.

More recently, Senate Republicans kept the late Antonin Scalia’s seat open for over a year, refusing President Obama’s nominee Merrick Garland a hearing or a vote. Neil Gorsuch, a far more conservative jurist, took the seat instead.

Republicans blocked Garland, saying they needed to wait until after the 2016 election to let voters speak, then rushed Kavanaugh through before voters could speak in 2018.

In the process, the White House turned the FBI investigation of Ford’s claims and Kavanaugh’s credibility into a whitewash. Don McGahn, White House counsel and Kavanaugh’s leading advocate, told Trump that a “wide ranging inquiry … would be potentially disastrous for Judge Kavanaugh’s chances of confirmation.”

Thus, a generations-long conservative majority on the court was cemented by a political minority. Kavanaugh was nominated by a president who won 46 percent of the popular vote and confirmed by senators representing 44 percent of the population. When you lack a majority, controlling the branch of government not subject to elections is vital.

In November’s elections, the party responsible for this travesty must be punished. Both parties are not equally to blame.

Progressives and Democrats need to organize far more effectively in low-population red states. Voters need to know that conservative judges often serve the interests of the wealthy and powerful, not those of the heartland.

If Democrats take control of the House, they should hold hearings on the administration’s manipulation of the FBI investigation, which may also reveal the extent Kavanaugh misled the Senate.

And Democrats can’t be squeamish about the need to enlarge the Supreme Court if they have the power to after the 2020 elections. The current court majority was illegitimately created. This wouldn’t constitute politicizing the court; conservatives did so and without apology.

We’ll need a considered two-year debate over changing the number of justices — it was done seven times during the 19th century — as the only plausible response to the conservative court-packing project that reached fruition on Saturday.

Its foes need to stay angry. But even more, they need to vote, organize and think boldly. Democracy itself is at stake.