Democracy’s ends days are upon us: The fall of the courts and the rule of law

Democracy dies slowly due to thousands of cuts from all directions. One quick, big coup de grâce is not how the death plays out. The last cut will end it in a probably small, quiet, final blow and a last twitch of democracy. The cuts that American neo-fascists, concentrated mainly in the Republican Party, are inflicting in these end days of democracy include, but are not limited to:

• Increasingly crippling attacks on and subversion of pro-democracy government institutions including law enforcement, the courts and civil liberties such as voting rights and protections against discrimination

• Increasingly crippling attacks on and subversion of a free press and investigative journalism

• Increasingly crippling attacks on and subversion of social trust, tolerance, secularism and pluralism

• Increasingly crippling attacks on and subversion of experts with inconvenient messages, e.g., climate science experts

• Increasing acceptance of deceit, lies, slanders, irrational emotional manipulation and crackpot motivated reasoning as truth and sound, honest reasoning, including divisive and/or deceptive special interest propaganda (special interests include the Republican Party)

• Increasing acceptance of corruption, conflicts of interest and nepotism as normal and acceptable aspects of governance

• Normalization of vulgarity and disrespect in political rhetoric, while vilifying manners and respectful speech as evil, tyrannical political correctness run amok

• Acceptance of routine double standards and hypocrisy by the neo-fascist team and its supporters, but rejection and attack on the same as outrageous and unacceptable by political opposition

With that for context, the Washington Post writes in an opinion piece on the crippling and politicization of federal courts, Opinion: The Supreme Court is broken. So is the system that confirms its justices:

The confirmation process for Supreme Court nominees is broken, and so, I fear, is the Supreme Court itself. These developments, mutually reinforcing, were both on sad display this week.

Not long ago, whether to confirm a Supreme Court nominee was not a predictably party-line affair, with a handful or fewer of defectors. In 2005, Chief Justice John G. Roberts Jr. was confirmed with 78 votes, and Democratic senators split equally on the nomination, 22 in favor and 22 against. That lopsided tally — earlier confirmations were, for the most part, more lopsided — is now a quaint artifact of a less polarized era.

The Senate finds itself now on the verge of a dangerous new reality, in which a Senate controlled by the party opposing the president might simply refuse to confirm a nominee, period. A tradition of deference to presidential prerogatives — of believing that elections have consequences, as Sen. Lindsey O. Graham (R-S.C.) liked to say in one of his earlier incarnations — is over. If the Senate majority is big and unified enough, it will defy the president.

Just wait and see. Republican senators were willing to caricature Ketanji Brown Jackson’s record in search of any excuse to vote against her — even though her addition to the court won’t affect its ideological balance. Imagine what would happen if a Republican appointee were to leave the court during a Democratic presidency. Actually, no imagination needed. Consider what the Senate did — or didn’t do — when Merrick Garland was nominated in 2016 to replace the late Antonin Scalia.

We could endlessly debate how things degenerated to this point: Republicans point to the Bork hearings, the Thomas hearings, the Gorsuch filibuster and the Kavanaugh hearings; Democrats bemoan the Garland blockade and the hurried Barrett confirmation. Neither side has clean hands.  

But increasingly, the court is using its emergency powers [the shadow docket] to step into disputes on the side that the majority favors — outside of the normal procedures and without written explanation.

Why? Because it can.

Just as bad as that, for unknown reasons the Democrats have abandoned the rule of law as applied to rich or powerful criminals. Presumably it has something to do with internal party politics and Dem politician re-election, possibly Biden’s own re-election. The WaPo writes in a different opinion piece:

The unpleasant display of a Democratic House Oversight Committee chair accusing President Biden’s Justice Department of obstruction probably made former president Donald Trump and his Republican loyalists grin from ear to ear. But looks are not deceiving. Rep. Carolyn B. Maloney (D-N.Y.) has gone public with her charge that Attorney General Merrick Garland is “interfering” with her committee’s probe into the 15 boxes of records that the Trump team took from the White House to Trump’s Mar-a-Lago estate in Florida.

Without strong and compelling evidence that the attorney general is impeding a congressional investigation of Trump’s actions, the Oversight Committee should take care that it itself does not impede an ongoing federal investigation. Garland has said his department will “look at the facts and the law and take it from there.” Disruption only aids those who may have flouted the law.

Reportedly among the records recovered from Mar-a-Lago were documents so sensitive that they may not be able to be publicly described in an unclassified inventory. That’s enough to send shivers down the spine of the U.S. intelligence community. Those national security officials know that the chief beneficiaries of mishandled U.S. classified information are foreign adversaries.  

Trump loyalists can complain all they want about the peddling of fake news. But an investigation of Trump’s handling — or mishandling — of U.S. government records at Mar-a-Lago should not be considered politically motivated.

By now, Biden and Garland have had plenty of time to prepare and indict the ex-president for multiple obstruction of justice felonies. Compelling evidence was laid out in the April 18, 2019 Mueller Report. That was three years ago. So far there is no indication that the ex-president will be held accountable for the crimes documented in the Mueller Report.[1] For rich or powerful criminals, the rule of law is falling or has already fallen, and now the federal courts are corrupted and broken, just like congress. 

However with lots of luck, assessments of broken courts and congress and a fallen rule of law will all prove to be premature or otherwise false. But don’t hold your breath. That tactic could prove to be fatally flawed.

Footnote: 

1. For reasons I can’t recall, maybe because none were given, the American people still have not seen the entire report without redactions. Apparently Biden’s DoJ wants to keep as much of the document secret as it can, just as the DoJ under Barr and T**** did. Wikipedia comments:

On April 19, 2019, House Judiciary Committee chairman Jerry Nadler issued a subpoena for the fully unredacted report.[507] A DOJ spokesperson called Nadler's subpoena “premature and unnecessary”, citing that the publicly released version of the report had “minimal redactions” and that Barr had already made arrangements for Nadler and other lawmakers to review a version with fewer redactions.[400][401] Barr offered to let twelve designated members of Congress view the less-redacted report in a secure room at the Justice Department, and forbade them from sharing the contents with other legislators. Several Republicans took advantage of the offer; the six Democrats refused, saying the conditions were too stringent.