In a display of adult self-delusion and crackpot juvenile logic, some Supreme Court justices have been publicly asserting that they are not political because sometimes they make decisions they do not like. That reasoning is nonsense. One can be a highly political judge, like all six of the radical Christian nationalist (CN) Republicans on the bench now, but still sometimes constrained by the law. Rome was not built in a day, and neither will the Republican Party’s dream of American fascism. To build a durable fascism, American democratic rule of law needs to be corrupted and subverted over time into authoritarianism. That cannot be done in a single case or even a dozen cases. It will take several years, probably at least four, assuming a Republican wins the White House in 2024.
Recent polling indicates that ~60% of Americans now view the court with disapproval. Recent court decisions that fell in line with fascist Republican and radical CN ideology appear to have had a negative impact on public opinion. The Washington Post writes:
In emergency decisions in August and September, the court ruled against two Biden administration initiatives, ending a nationwide eviction moratorium and reimposing an abandoned immigration policy. And in a bitter 5-to-4 split that sparked controversy and prompted congressional action, the court allowed to take effect a Texas law banning most abortions after six weeks of pregnancy, while legal challenges to it continue.“I think these last few years have really been very dangerous and potentially devastating to the Supreme Court’s credibility because the public is seeing the court as increasingly political, and the public is right,” said Sen. Richard Blumenthal (D-Conn.), who served as a Supreme Court clerk to Justice Harry A. Blackmun. “The statements by Thomas, Barrett, Breyer, you know, give me a break . . . they are just inherently noncredible.”
As expected, the radical right propaganda Leviathan has been cranked up to chime in with its faux reality. Radical right propagandists and blowhards dismiss charges of radical right politics in the court as just liberal complaints about a Supreme Court doing great job. This is as partisan as just about everything else in contested American politics.
No one on the radical right and none of the judges mention the fact that Republican nominees have to pass a number of political litmus tests to even be considered for a judicial nomination. The political tests are what one would expect. For example, Republican nominees must show themselves to staunchly opposed to abortion, gun regulation, government regulation, taxes, secularism, secular education, climate change regulation, immigration, consumer protection, civil liberties, and staunchly in favor of corporate power, rich people power and trickle-up economics.
By definition, fascist Republican judges are pre-packaged politicians with their credentials and ideological bona fides thoroughly vetted before they can be put on the radical right, CN Federal Society’s acceptable judge list. At least for the fascist Republicans in power, this is purely political and so are their judges.
What about the Dem’s litmus tests for judges?
In 2019, some Democratic politicians indicated that for them, support for abortion rights and the 1973 Supreme Court Roe v. Wade decision was their litmus test. The Hill wrote in an article entitled, 2020 Dems break political taboos by endorsing litmus tests:
Democratic presidential hopefuls are embracing a political tool long considered taboo: setting litmus tests for potential judicial nominees.
A torrent of legislation restricting abortion rights in several states has prompted a scramble among several candidates to set more explicit ideological and jurisprudential conditions for would-be judicial nominees.
Chief among those conditions: that any potential judicial nominee back the ruling in Roe v. Wade, the landmark 1973 Supreme Court case that established a woman’s right to an abortion. So far, a handful of candidates for the Democratic nomination, including Sens. Kirsten Gillibrand (D-N.Y.) and Bernie Sanders (I-Vt.), have committed to appointing only justices that would uphold that decision.
Those pledges underscore the extent to which presidential candidates have become comfortable with shattering what has been considered largely off-limits in campaign politics.
“There’s been a discomfort with crossing that line. I think what we’ve seen over the past three years is a breakdown in that discomfort,” Christopher Schmidt, a constitutional law professor at Chicago-Kent College of Law.
It looks like that in response to the rigid litmus tests the FRP (fascist Republican Party) now require its judicial nominees to pass, the Democratic Party has started moving in the same direction, at least on the issue of abortion.
A personal analysis: Not all litmus tests are the same -- authoritarian vs. democratic
Demagoguery: political rhetoric, activity or practices that seek support by appealing to the desires and prejudices of ordinary people rather than by using rational argument
In my opinion, there are two fundamentally opposed mindsets at war in America’s political and legal systems. One is mostly democratic, pluralistic, secular, and in favor of relatively more wealth and power distribution to the masses. For the most part but not completely, that’s the Democrats. The other mindset is mostly authoritarian, racially and socially intolerant (I see it as an American variant of fascism) and in favor relatively more wealth and power distribution to wealthy people and powerful special interests, usually at the expense of the masses and/or the environment. For the most part and with few exceptions, that’s the FRP. Decades of RINO hunts have mostly ideologically cleansed the FRP of mental diversity.
Based on 2010 data
One other important mindset difference is grounded in principle and morality. The democratic mindset usually relies much more on facts and reasonably sound reasoning to make its arguments and appeals for support. For that mindset, the ends do not justify the means. Inherent in the democratic mindset is an openness to accepting social change in both law and policy.
By contrast, the fascist mindset is demagogic and relies much more on lies, deceit, irrational emotional manipulation and partisan motivated reasoning. Here, the ends justify the means, e.g., lies, fomented irrational fear, hate, bigotry, etc. Inherent in the fascist mindset is an openness to law and policy that the elites dictate, usually in reliance on laisses-faire capitalism and/or God as moral authority. In general, society gets what it wants only if the elites, speaking for their economic ideology and/or God also want it.
Those opposed mindsets are at war in the courts. Hence the litmus tests. If one accepts that description of the two mindsets as basically accurate, and yes, the FRP vehemently disagrees, one can see litmus tests for judges as one of two different things, mostly democratic or mostly authoritarian. Thus a judicial litmus test in favor of defending something that most of the public wants, e.g., easy access to legal, safe abortions, is different than a litmus test hell-bent on getting rid of abortion rights regardless of what the public wants.
Questions:
1. Are all litmus tests for judges equal, or is the democratic vs authoritarian distinction argued here real and meaningful?
2. FRP elites and its propagandist Leviathan (Faux News, Breitbart, the Federalist Society, etc.) now routinely refer to the Democratic Party as radical left and socialist tyrants, but is that true, with the FRP actually being the more authoritarian and radical of the two mindsets?
3. Which mindset is currently more powerful (i) in politics and law, and (ii) in society generally, as represented by, e.g., the distribution of wealth data shown above?
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