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Frank DeFilippo: For America’s Courts, It’s Back to the Future

The U.S. Supreme Court. Photo by Al Drago/Getty Images.

To many voters, the gist of the Trump administration’s policies to “Make America Great Again” appear simple to decode: They will either poison us, bankrupt us or get us all killed.

That is not the direct intent, of course, but they sure could lead us there if we’re not vigilant. The nation is swinging wildly between anarchy on the left and tyranny on the right. One of the few institutions that remains to impose sanity in America is the courts, and even they are headed for the shredder. They have become as politicized as any other government trenchermen.

Frank A. DeFilippo

That is why the nomination of Brett Kavanaugh to a lifetime appointment to the U.S. Supreme Court is a telescope to the kind of back-to-the-future lifescape America could become. Kavanaugh is the newest rollout of the sort of judges the Trump administration, in cahoots with Christian conservatives and that Republican judicial Rorschach laboratory, the Federalist Society, has been packing the lower courts with.

The partisan furor in Congress over Kavanaugh’s nomination is a near-perfect reflection of the tribal, regional, demographic and political party divisions that are tearing the nation apart and are presented in every poll that tracks such pathologies.

If Trump can’t make America great again – kind of like take-two of The Boys from Brazil – by law or fiat, then, by golly, they’ll end-run those institutions by packing the courts and accomplish the bleaching of America by judicial decision. That is why a fifth be-robed enforcer is needed for the grand inquisition that must inhabit Trump’s subconscious (when he’s not watching his personal Cliff’s Notes, Fox News). It locks up the conservative bloc of five by replacing a swing vote with a Republican gauleiter.

President Trump has been on a tear to slam on the brakes and send us all crashing through the windshield. His reversal of environmental protections would have us gagging on our own toxins. His economic policies would hurtle us backward to 18th-century mercantilism. And his rattling of nuclear toys would – well, we’ve all seen the replays of mushroom clouds and fission wipeout.

Trump is a president with uncontrollable urges and a determined Sharpie. And he’s surrounded mainly by toadies who’ll kowtow to his every whim, more out of fear than conviction, including his Republican sockpuppets in Congress. He’ll sign a hot rock if it’s put between him and a television camera. He has churned out innumerable executive orders, many of them meaningless but most of them calculated to repeal or reduce the policies of his immediate predecessor, President Barack Obama (D). This has been especially true of the environment and other consumer safeguards. Ever wonder if this would be happening if Obama had been white?

But the issue that stands out as the Trump administration’s identifying imprint is its attitude toward immigrants, the true unwritten message of MAGA. It is on this point that Trump has been rejected and repudiated repeatedly by the courts, while their independence lasts. Even more telling is Trump’s cynical disregard for the Justice Department, viewing it more as a fortress to protect him personally than as a defense against injustice for all Americans.

What the Kavanaugh nomination is really all about, though, is the tetchy relevance of Roe v. Wade and the persistent itch that it causes that benighted band of Trump supporters on the religious right that inhabits the dominant swampside of the Republican Party.

In the broad stretch of time between the 1950s and 1970s, the courts were the last refuge of liberals who were attempting to advance the cause of civil rights in its various manifestations. Today, the roles are reversed. It’s the conservatives who seek solace and remedies in the courts in their attempts to reverse the advances that were made a half century ago. They can’t seem to let go of the ’60s.

The Supreme Court has two functions – to interpret the Constitution and to review existing laws. The Elmer Gantrys of the religious right are hoping that Kavanaugh will find a worm-hole in the Roe v. Wade decision to force it before the court once again and get rid of it once and for all. There’s no longer a serious question about why government pokes its invasive nose into the bedroom at all.

Kavanaugh is half-way to the imperial tailor to be measured for a robe, including a late-entry FBI investigation. Trump might as well be escorting him there. If, as anticipated, the outcome(s) of the Russia probe ends up before the high court, Kavanaugh could be judging the future of his patron.

Kavanaugh has written extensively, in a previous life, about distracting the president from his high obligations and duties (which in Trump’s case is watching television and tweeting). And Kavanaugh has an expansive view of presidential powers.

Two personal traits that received only cursory observation during the full day’s hearing when Kavanaugh appeared following the gripping testimony of Christine Blasey Ford, the woman Kavanaugh is alleged to have assaulted when they were teenagers: (1) Kavanaugh is a prep-school snot whose sanctimony measures in equal parts with his nastiness. (2) Kavanaugh may not be a serial groper or a college chug-a-lug champ, but he is a political hack, pure and simple. He served as White House secretary to President George W. Bush and on special counsel Ken Starr’s staff that recommended impeachment of President Bill Clinton. Kavanaugh might not be on the federal bench now in the District of Columbia if it weren’t as a reward for serving as an aide de-camp to a president.

Furthermore, Kavanaugh blamed Senate Judiciary Committee Democrats for destroying his family when, in fact, it was Kavanaugh’s own blind ambition that might have caused any family breakdown. He could have withdrawn, as others have before him, when he saw the freight train approaching. It is safe to add here that Kavanaugh’s behavior before the committee renders him a lousy witness and a poor advocate for his own cause.

Recall that Rob Porter, the White House secretary to Trump, resigned (or was forced to) for a lot less than Kavanaugh is accused of. In Kavanaugh’s case, the lingering stain of accusation should raise a huge question mark about his fitness for judicial service on the nation’s highest court.

Kavanaugh is a Marylander through and through, a product of Montgomery County, its exclusive country clubs, elite private schools and tight little social circles of moneyed sameness. He is not the first Marylander to grope for the grail of the Supreme Court.

Roger B. Taney, from Frederick County, was there long before Kavanaugh. And for a single decision in an otherwise notable career, Taney has been blamed and banished and ripped from history for the Dred Scott decision at a time when the nation was still young and the Constitution was like trying to make sense out of a tub of alphabet soup.

If Kavanaugh, perhaps, makes it to the Supreme Court, and they ever erect a likeness of him, maybe eventually they’ll be forced to take it down in the stealth of night and cart it off to some dank basement reliquary, alongside of Taney’s, out of sight and out of mind.

Smile, Merrick Garland. This one’s for you.


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Frank DeFilippo: For America’s Courts, It’s Back to the Future