SUNDAY, APRIL 10 , 2022. THE WASHINGTON POST EZ RE A29
SUNDAY Opinion
T
here were even more vermin than usual in
Washington this past week. A rabid fox at
the Capitol bit at least nine people, includ-
ing Rep. Ami Bera (D-Calif.). And Demo-
cratic National Committee Chair Jaime Harrison
attacked Sen. Tom Cotton (R-Ark.) with an insult
most entomological.
After Cotton implied that Supreme Court Justice-
designate Ketanji Brown Jackson is a Nazi sympa-
thizer, Harrison referred to Cotton as a “little
m aggot-infested man” on MSNBC’s “Morning Joe.”
Fake news! Cotton might go low, but, at 6-foot-5,
he is not little. Also, maggots typically feed on dead
things, and Cotton, though stiff, is not currently
deceased. The man likes to carry on, but he is not
carrion.
Harrison went on to censure the Republican
Party as a whole: “It is a party built on fraud, fear and
fascism.” Interestingly, a statement from the Repub-
lican National Committee taking offense at the
“maggot-infested” charge did not dispute the
“fraud, fear and fascism” formulation. As your
self-appointed fact checker, I have therefore exam-
ined the merits of the accusation.Fraud
Sixteen months after President Donald Trump’s
claims of election fraud failed in some 60 court
cases, we have finally found evidence of potential
voter fraud. Trump’s White House chief of staff,
Mark Meadows, reportedly registered to vote in
2020 using the address of a mobile home he never
lived in. And former Trump State Department
official Matt Mowers, a current congressional can-
didate, voted twice during the 2016 primaries, in
New Hampshire and New Jersey.
The “big lie” about a rigged election, accepted by
two-thirds of Republican voters, has spawned new
frauds about the dangers of coronavirus vaccines
(leading to sharply higher death rates in heavily
Republican counties) and the promise, touted by
Sen. Ron Johnson (R-Wis.), of the deworming drug
ivermectin to treat covid-19; an exhaustive new
study finds the drug useless.
Then there are the little everyday frauds. Just
days after Rep. Madison Cawthorn (R-N.C.) told the
world that his colleagues engage in coke-fueled
orgies, Rep. Lisa McClain (R-Mich.) declared at a
Trump rally that it was Trump who “caught Osama
bin Laden,” record-low unemployment is at a
“ 40-year high” and there weren’t “any wars” during
Trump’s presidency. Never mind Syria and
A fghanistan.Fear
Sen. Ted Cruz (R-Tex.) said people like Ketanji
Brown Jackson become public defenders because
“their heart is with the murderers.” Cotton said
Justice Robert H. Jackson “left the Supreme Court
to go to Nuremberg and prosecute the case against
the Nazis. This Judge Jackson might have gone
there to defend them.”
Republican senators used the Jackson confirma-
tion to stir fear of minorities and vulnerable groups
with manufactured crises about transgender ath-
letes (of the 200,000 participants in women’s col-
legiate sports, perhaps 50 are transgender) and
“critical race theory” (which isn’t taught in public
schools).
Ohio Republican Senate candidate J.D. Vance
released an ad saying “Biden’s open border is killing
Ohioans, with more illegal drugs and more Demo-
crat voters pouring into this country.”
Rep. Paul A. Gosar (R-Ariz.), in his latest dalliance
with white nationalists, was listed as a “featured
guest” at an event on April 20 (Adolf Hitler’s birth-
day) of a white-nationalist-tied group. His office
denies he’ll participate, but Gosar shared details of
the event on Instagram, the Arizona Mirror reports.
At a Trump-hosted screening at Mar-a-Lago last
week of “Rigged: The Zuckerberg Funded Plot to
Defeat Donald Trump,” a poster showed Mark Zuck-
erberg “devilishly grabbing cash,” The Post’s Josh
Dawsey reported. The film repeatedly describes the
Jewish billionaire’s money as “Zuckerbucks” — even
though the Anti-Defamation League objected to the
term as an antisemitic trope about wealthy Jewish
control.Fascism
Sixty-three House Republicans — 30 percent of
the caucus — voted against a resolution last week
affirming unequivocal support for NATO as author-
itarian Russia attacks democratic Ukraine.
A Republican National Committee resolution,
never rescinded, refers to the Capitol insurrection
not as an authoritarian attempt to overthrow de-
mocracy and keep the defeated Trump in power but
as “legitimate political discourse.” And Trump ex-
presses regret he didn’t march to the Capitol with
the insurrectionists.
Republican-run states are racing to follow
F lorida’s “don’t say gay” legislation that bans teach-
ing about sexual orientation or gender identity,
which follows similar efforts to ban certain teaching
about race and history, and widespread efforts to
ban books about race, sexuality, gender and police
brutality.
The Florida legislature approved an “election
crimes” police force for Gov. Ron DeSantis (R), with
the potential to intimidate voters, while various
GOP-led states move forward with new provisions
providing residents with incentives to inform on
each other.
The newly revealed text messages of Justice
C larence Thomas’s activist wife, Ginni, show her
sharing with the Trump White House her “hope”
that the “Biden crime family” as well as elected
officials, bureaucrats and journalists would be tak-
en to “barges off GITMO to face military tribunals
for sedition.”
l
Is the GOP “a party built on fraud, fear and
fascism”? Certainly, not all Republicans think this
way. But too many others are subverting democracy,
cavorting with white nationalists, spreading racist
fears and fantasizing about extrajudicial punish-
ment for political opponents and the media. For
them, the jackboot fits.DANA MILBANKGOP ‘built on
fraud, fear and
fascism’? If the
jackboot fits...
BILL O'LEARY/THE WASHINGTON POST
Judge Ketanji Brown Jackson wipes away a tear as President Biden speaks at a ceremony on the South Lawn of the White House on Friday.T
he confirmation process for Su-
preme Court nominees is bro-
ken, and so, I fear, is the Su-
preme Court itself. These de-
velopments, mutually reinforcing,
were both on sad display this past 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 Demo-
cratic senators split equally on the
nomination, 22 in favor and 22 against.
That lopsided tally — earlier confirma-
tions 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 elec-
tions have consequences, as Sen. Lind-
sey 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 sena-
tors 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 Republicanappointee were to leave the court dur-
ing 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: Re-
publicans point to the Bork hearings,
the Thomas hearings, the Gorsuch fili-
buster and the Kavanaugh hearings;
Democrats bemoan the Garland block-
ade and the hurried Barrett confirma-
tion. Neither side has clean hands.
The result is a fiercely partisan proc-
ess that demeans the Senate and politi-
cizes the court, rendering it a creature
of political will and power. At this stage,
there is no incentive for either party to
back down from this maximalism.
Time was (starting with Robert
H. Bork), the Senate debated whether a
nominee was in or outside the judicial
mainstream. That assessment was in
the eye of the beholder, of course, but at
least it was a nod at deliberation.
That is so 1987. Judicial philosophy is
now aligned with political party as
never before in the court’s history. So it
is no surprise to witness the same phe-
nomenon — the raw exercise of power
overtaking normal processes — unfold-
ing on the court itself. Norms are shred-
ded in both branches.
One vivid manifestation involves the
conservative majority’s use of the emer-
gency docket — what’s called, in moresinister-sounding terms, the shadow
docket.
The court’s work is supposed to be
conducted after full written briefing
and oral argument and justified by
written opinions. It has rules, or is
supposed to, about when to intervene
to referee disputes before they get to
that stage, and, of course, that needs to
happen sometimes. But increasingly,
the court is using its emergency powers
to step into disputes on the side that the
m ajority favors — outside of the normal
procedures and without written
e xplanation.
Why? Because it can.
Thus, the week of Jackson’s confir-
mation saw five conservative justices —
over the dissent of three liberals and the
chief justice — intervening in a case still
pending before a federal appeals court.
Five conservative justices voted to
reinstate a Trump-era clean-water rule
that restricted states’ ability to block
potentially polluting projects. The
three remaining liberal justices —
joined, notably, by Chief Justice Rob-
erts — dissented, complaining that the
court was misusing its emergency pow-
ers by reviving the rule without the
proof that was necessary to avoid “ir-
reparable harm,” as the court’s prec-
edents require.
“That renders the Court’s emergency
docket not for emergencies at all,”
wrote Justice Elena Kagan. This might
sound mild, but process matters at theSupreme Court, and while Roberts had
voted with the liberals before in such
cases, this was the first time he had
joined a dissent criticizing the misuse
of the shadow docket.
Maybe the district court judge in the
case made a mistake by going further
than the Biden administration had
asked in vacating the Trump-era regu-
lation, not simply returning the matter
to the Environmental Protection Agen-
cy while it worked on a new version of
the rule.
That’s not the point. The point is that
courts have rules about when to grant
emergency relief — and the test isn’t
just whether the lower court got it
wrong. An appeals court is reviewing
the district judge’s decision and, apply-
ing those rules, declined to stop it from
taking effect. As Kagan explained in her
dissent, “This Court may stay a decision
under review in a court of appeals ‘only
in extraordinary circumstances’ and
‘upon the weightiest considerations.’ ”
No emergency justified the Supreme
Court interfering here. It just had the
votes to act anyway.
When norms give way to partisan-
ship and ideology, when applying im-
partial rules yields to obtaining results
by any means, institutional legitimacy
erodes. The immediate gain is under-
standably tempting. The institutional
damage might not be immediately evi-
dent, but it is as undeniable as it will be
difficult to repair.RUTH MARCUSThe Supreme Court is broken. So is the system
that confirms its justices.
“I
n my family, it took just
one generation to go
from segregation to the
Supreme Court of the
United States.”
Sometimes history can be
summed up in a single sentence of
naked simplicity. But there were all
kinds of complex elements
squeezed in between every vowel
and consonant in that declaration
by incoming Justice Ketanji Brown
Jackson on Friday in a ceremony on
the White House South Lawn.
Jackson will become the first
Black woman to serve on the high-
est court in the land — and the
fervent applause she received after
delivering that line was a powerful
homage to both her journey and
that of the country she serves.
But to understand the full impor-
tance of her ascent you need to
dwell on the word that sits like a
leaden anchor at the center of that
sentence: segregation.
Jackson was born in 1970, when
the victories of the civil rights
movement were beginning to mani-
fest themselves in housing, employ-
ment, sports, education and enter-
tainment. But racial divisions re-
mained stark after decades of legal-
ly sanctioned segregation that
followed 250 years of legal enslave-
ment of Blacks.
Because neither the passage of
laws nor the dismantling of racial
codes erased the deeply ingrained
narrative of racial inferiority. Amer-
ica had long been invested in the
separation of races and, to be more
specific, the automatic privilege
that comes with White skin. The
vestiges of slavery and segregation
are still with us, and yet we findourselves in a time when the party
that so viciously opposed Jackson’s
nomination wants to eviscerate the
teachings and discussions of our
nation’s racial history and focus
instead on the p rogress America
has made.They argue that we should not
dwell on all that old-timey stuff like
chains and shackles, dogs and
h oses, or white hoods and black
bodies swinging from trees. Well, to
understand and fully appreciate
the progress we’ve made, you need
more than a passing understanding
of the dark places Americans
dwelled within the sanction of law
to keep bodies in bondage, to keep
people oppressed, to keep human
beings in a subjugated state that
mocks the core tenets of our
C onstitution.
And if you understand that his-
tory, you can quickly and clearly see
how the waves of disrespect hurled
at Jackson in the past month cut tooclose to the casual and constant
denigration of Black people, and
especially Black women, over cen-
turies in this country.
She was interrupted. She was
called a liar. She was asked about
anti-racist textbooks that have little
to do with her work on the bench.
Her record was distorted. Her
a ccomplishments were belittled.
Senators addressed her in loud and
hostile tones and language that
wholly lacked the commensurate
respect for the nominee or the
process or even the building where
the hearing took place.
If you can bring yourself to even
glance at our painful racial past, the
behavior of some of the senators
leaves a particularly foul aftertaste.
Sen. Rand Paul (R-Ky.) held up
Jackson’s confirmation vote for half
an hour and eventually cast his vote
from the cloakroom, a private meet-
ing space off the Senate floor.
T rifling is not a word one likes to
apply to lawmakers, but how else
do you describe that kind of loutish
behavior? Sen. Lindsey O. Graham
(R-S.C.) didn’t wear a tie for the
vote, which meant he could not
appear on the Senate floor. He too
cast a no vote from the cloakroom.
His office released a video from a
news conference earlier in the day
where he railed once again that
President Biden should have taken
his advice to nominate a preferable
Black nominee from his home state.
He managed to find a tie for that
performance.
The people who opposed this
nomination spent a lot of energy
suggesting that Jackson was some
kind of less-qualified affirmative
action hire because her elevationfulfilled Biden’s campaign pledge to
nominate a Black woman to the
Supreme Court. You didn’t hear
that kind of howling years ago
when Ronald Reagan pledged to
nominate a woman before settling
on Sandra Day O’Connor. One of the
worst remnants of all those years of
segregation is a latent assumption
that Black people are inherently
less qualified. It’s a lie. It’s always
been a lie, and Jackson’s sparkling
intellect and cool under pressure
should remind us that America has
been robbed of this kind of genius
and talent for centuries, because
women and all kinds of people of
color have too often been kept out
of consideration.
In the end, when Jackson was
confirmed and the chamber broke
out in thunderous applause, most
Republican senators left the room
like sore losers. (Utah’s Mitt Rom-
ney was an exception.) This was so
much worse than athletes sulking
off the field instead of rolling
through the handshake line. This
was refusing to show respect to a
woman now charged with acting in
the best interest of all Americans.
That is what service at the highest
levels is all about: acting in the
interest of all A mericans.
They could not stop her nomina-
tion, so they would not applaud it or
show her the respect she
deserves. But they will have to
accept her confirmation as fact. Her
name will someday grace schools,
libraries and public buildings; her
face will smile down from massive
public murals; her words will likely
be carved into stone for school -
children to memorize. They cannot
stop that.MICHELE L. NORRISJudge Jackson’s long journey
to the court — and ours
Her name will someday
grace schools, libraries
and public buildings; her
words will likely be
carved into stone for
schoolchildren to
memorize. They cannot
stop that.