Let them enforce it

A couple storys about the judicial branch of our government in the nasty guy era.

Melissa McEwan of Shakesville has been doing a daily list of what the nasty guy and his minions have been doing to undermine democracy. The list is always long. She has now started a daily list of what the nasty guy and his minions are doing in their war against immigrants. This second list is more than half the length of the first.

In yesterday’s list of actions against immigrants she linked to two articles about the court that ruled that children under 5 who were taken from their parents need to be reunited by today. There are reports of 100 such children. One of these articles say that Secretary Alex Azar of the Department of Health and Human Services assured us the goal of reuniting all these little kids would be met – only to immediately backtrack. He did so because someone in the gov’t (maybe not Azar) said they’ve lost track of 20% of the parents.

In the second article the ACLU says less than half of these children will be reunited by today. There has also been talk of the gov’t people whining about how hard the task is and that they need extra time.

McEwan’s commenters add to the story:

donnakh reminds us this family separation process is intended as punishment. “There was not any way to keep track of the families in place because they never wanted to.”

Zardeenah says the key phrase might be “now let them enforce it.” I’ll expand on that. The NPR program Radiolab did a series More Perfect about the Supreme Court. One struggle early in our nation’s history is what happens when the Supremes hand down a ruling. The courts don’t have any police force of their own, so can’t go after anyone who disregards what they say. The Supremes have power because the other two branches of government say they have power. The President and Congress have consistently done what the Supremes required.

That power was made clear in the modern era when in 2000 the Supremes ruled for G. W. Bush to take the presidency. Al Gore’s concession speech was described as the best of his candidacy. He said he disagreed with the Supremes, but respected and understood the value of the court in a democracy. He would not continue to battle their decision.

So now we have a federal court that has issued a demand to the nasty guy, a demand he has no intention to fulfill and has made sure it is very difficult to fulfill. This leaves two paths, neither is good.

The first path, of which we’ve already seen evidence, is for the gov’t officials to whine about how hard it is to comply and the court extending the deadline. More whining could extend it some more. This could go on indefinitely. The result is a court order that is not followed.

The second path is the court holds firm and starts saying the slow response is contempt of court. The reply from the nasty guy and his minions is essentially, yes, you get it – we have contempt for the court. Want us to return those kids? How are you going to enforce it? Congress certainly won’t.

Either path is a big step in rendering the courts meaningless.

On to the other big story about courts in the nasty guy era.

The news, of course, has lots of stories about Brett Kavanaugh being nominated for the Supreme Court. All the progressive news sites will tell you how horrible he will be to progressive ideas and causes.

McEwan discusses another aspect to this appointment, of which I’ve heard rumors. Reportedly the nasty guy convinced Justice Anthony Kennedy to retire by assuring Kennedy his legacy would be protected. This campaign reportedly began last November when Kavanaugh and four others (used as cover) were added to the list of potential nominees. Yeah, that means the nasty guy made his choice last November and the rest was just show. It also means the nasty guy actively influenced the court.

Though Kennedy has sided with progressives in key issues over the years, most important to us being the ruling legalizing same-sex marriage, he was not a progressive nor even a centrist. He was just the most moderate of the conservatives. I think it was Nina Totenburg of NPR who noted that in the 2017-2018 court season there were no 5-4 votes in favor of progressives with Kennedy as that swing voter.

Each of the nine justices has a few clerks who work for them for a year or two. It gives law school graduates a shiny star to put on their resumes. Of course, justices choose clerks who match their own progressive/conservative leanings. One of Kennedy’s former clerks is – Brett Kavanaugh. Reportedly Kavanaugh made such a personal impression on Kennedy that the mention of the former clerk as a replacement convinced the justice to retire.

I’ve also heard that all four of the finalists served as clerks for Kennedy.

So we look for one more thing that set Kavanaugh apart: Kavanaugh has written that the president should not be the subject of a criminal investigation while in office. Think the president did something criminal? Impeach him. But otherwise don’t investigate him.

Though it is obvious, I’ll spell it out anyway. While he is in office this president is being investigated for criminal offenses associated with his collusion with Russia. Of course, he would be delighted with a justice who believes it is wrong to investigate the president.

But that opinion is in conflict with what Kavanaugh thought twenty years ago. Then he was a part of Ken Starr’s special investigation into President Bill Clinton.

In one story the judiciary is made irrelevant. In the other the judiciary becomes an enabler of a despot. And democracy gets whacked upside the head.