Yep, it’s another split-screen kind of evening tonight. On one side, a federal judge ruled against President Donald Trump’s latest attempt to do an end-run around the legal obstacles that have hindered his “zero tolerance” policy of indefinite immigrant detention. And on the other side, Trump picks Brett Kavanaugh to ascend to the U.S. Supreme Court in the hope that the new Justice gives his President the ultimate “thank you gift”.
Yep, this is how Donald Trump is making America great again.
LA Law, starring Judge Dolly Gee
When Trump decided to amend his “zero tolerance” executive order, he added this caveat: The federal government would attempt to compel the courts to toss aside the 1997 settlement that places limits on detention of immigrant children. Ever the gambler, Trump decided to take his chance with California District Court Judge Dolly Gee, who was nominated by Presdient Barack Obama and assumed office in 2010, rather than abide by the 21 year-old agreement.
That gamble resulted in tonight’s big bust. “Defendants seek to light a match to the Flores Agreement and ask this Court to upend the parties’ agreement by judicial fiat,” Gee wrote in her decision. “It is apparent that Defendants’ Application is a cynical attempt […] to shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered Executive action that have led to the current stalemate.”
Perhaps if this were a different kind of White House, they would realize the legal and humanitarian shortcomings of their actions. Instead, Trump will likely continue to fight… Since he’s doing everything possible to rig the system in his favor.
Live from the White House, it’s your new Supreme Court Justice!
Just as expected, Trump put on a big show with all the razzle-dazzle. And just as we all should have expected, Trump picked the judge most likely to defer to executive privilege.
Not only does Brett Kavanaugh have a long history of serving the Republican Party’s political interests, but he also has a long history of advocating deference to executive authority on a host of issues, including restricting civil suits and criminal investigations into sitting Presidents. And considering this President’s penchant for legal trouble, Kavanaugh’s apparent affinity for the unitary executive theory is much welcomed news for the White House.
And it’s not just Trump-Russia we’re talking about. One can easily imagine a Justice Kavanaugh siding with the four other Republican-appointed Justices to affirm Trump’s authority to deny immigrants and visitors entry into the U.S. for “national security purposes”. One can also see Kavanaugh defer to “executive authority” to make similar power plays to curtail civil rights for threatened minority groups, and/or to ignore prior court rulings to regulate greenhouse gas emissions and act on climate change. When one looks more closely into Judge Brett Kavanaugh’s record, it’s quite easy to see why Trump ultimately settled on him.
So what now?
Late last month, I asked whether Congressional Democrats had what it takes to fight to win. Frankly, I’m still wondering. Sure, Senate Minority Leader Chuck Schumer (D-New York) is pounding his chest and voicing all the sternly worded requests right now. But will he really try to pull out all the stops to push back, or are we in for the kind of kabuki theater that resulted in fait accompli for Neil Gorsuch?
Sure, we probably already know that Senator Catherine Cortez Masto (D) will probably vote against Kavanaugh’s confirmation while Senator Dean Heller (R) does cartwheels on his way to give Kavanaugh a full cheer routine on the Senate floor. Again, we know how the Capitol Hill kabuki theater shows go. What I’m waiting for is something real, such as Senators actually vetting one of these nominees for real and really acting on their “sincere concerns” for civil liberties. It’s up to Senate Republicans to prove they can actually act on their “concerns”, and it’s up to Senate Democrats to do more than merely “vote the right way”.
Otherwise, we truly are living through the latest season of unREAL… Just with a much less talented set of actors.