I have said little on this wreck until now, but here it is:
So it’s over, as Judge Brett Kavanaugh crosses the finish line to become Justice Brett Kavanaugh, by the closest margin possible and after paying a terrible price professionally and personally. This will be a seismic change at the Supreme Court and for this nation, but not only because his confirmation will move the Court to the right for the foreseeable future. Most people, heck, most LAWYERS, couldn’t tell you thing one about any of the judge’s decisions and why they are significant off the top of their heads, and even lawyers would probably have to do some research. Most people couldn’t tell you anything even vaguely specific about his judicial philosophy, except for the fact that Trump nominated him, so he must be right-wing.
Actually, Judge Kavanaugh served on panels with Obama nominee Merrick Garland and joined him in 93% of the opinions, dissenting from him only once. But most people, going forward, will tell you he was accused of attempting to rape a fifteen-year-old girl. They may even leave out the “accused of” or “attempted” part, or perhaps both. There are a lot of words most of us don’t want to see in the same paragraph with our own names even once. I think rape ranks up there in the top ten, maybe even the top four. Judge Kavanaugh is now going to see that probably a good 75%-80% of the time his name appears in print, because the mainstream media isn’t going to let this go, nor miss a chance as the years pass to imply he’s a pervert and a criminal who escaped justice and got a reward he didn’t deserve.
The more important reasons this represents a seismic shift are the precedent that it has set for how any high-level appointee, but especially a high-level conservative appointee, and most especially a high-level conservative appointee to a position that is going to have a major impact, is going to be treated, and the level to which opposition to such an appointee is willing to go that has been exposed. There is very little history of any modern, qualified appointee being treated in this manner.
Robert Bork made the mistake of not replying strongly to Ted Kennedy’s vile attack on him. Judge Bork was no dummy, and was in fact a seasoned litigator, so I can only say I believe he did not reply more strongly because he believed that no one would be swayed by such an outrageous statement. He was wrong. However, outrageous though Kennedy’s attack may have been, it was at least based on policy and the differing vision of where the country should go. Clarence Thomas received a despicable late hit from Anita Hill, accusing him of sexually harassing her (a co-worker who she followed into a different position at a different agency) after she conveniently held back until the hearings were over. He was able to deflect by deft testimony of his own which pronounced this attack (in his words)
“…a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you.”
What happened to Kavanaugh wasn’t akin to either Kennedy’s unanswered hate-spew against Bork, or Anita Hill’s coming forward and leveling accusations from an earlier time in Thomas’ legal career. I’m not even sure it’s akin to the Senate’s poor treatment of John Tower, who was rejected as Secretary of Defense amid anonymous allegations of drinking and womanizing, some of which weren’t even accurate. At least those allegations involved behavior as a Senator, not as a juvenile. There were no allegations that he was going to set the country on the wrong path or that he was some form of dangerous, evil figure due to his politics. Finally, Tower did not suffer fools gladly, so during his tenure as a senator he had made some enemies who used his nomination as a chance to settle some old scores. I would add that once the decision of the Senate was known, then-President George H.W. Bush simply moved on and nominated Dick Cheney, and the Senate also moved on and confirmed Cheney with a minimum of fuss.
In this case there were no allegations at all of misbehavior while Kavanaugh served on the bench or during his legal career prior to it. There is no evidence that the judge had anything other than a completely blameless personal life; no affairs, no questionable gifts, no using his office for access or privileges he wouldn’t otherwise get. Unlike Robert Bork, the target did not remain silent, and successfully stood up to every challenge on his philosophy and career the Democratic senators on the Judiciary could throw at him, most of which were not easy, and a few of which, notably those by Cory Booker and Diane Feinstein, were unfair. Just based on his career, record and scholarship, the man was clearly qualified to take Justice Kennedy’s place. That should have been the end of it, and there was no reason he should not have been confirmed at the close of the hearings.
As we all know that wasn’t the end of it. It wasn’t the end of it for a number of reasons, a lot of which, I have to say, are invalid, and what followed has pushed this already nation, which was already divided further than is healthy (divided in part thanks to the tactics of the last president, but that’s a separate discussion) further apart, and set the stage for it to take a path that is very likely to end badly.
The first reason is that the Supreme Court’s role, indeed the role of the Federal judiciary, has greatly expanded beyond what it was originally envisioned as, partly due to party politics, partly due to other historical factors. Fear of a judiciary that might go too far goes back at least to Thomas Jefferson who wrote, “The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”
TJ’s fears became much closer to reality when FDR overstayed the traditional two terms and waited out deaths and retirements to fill the court with his own people rather than earlier justices who had slapped down his overreaching. They fully flowered when activist judges and justices of the late 1950s and 1960s decided that they knew how to run things better than those who actually ran them and still more activist judges and justices of later decades created new rights out of whole cloth that certain segments of the population grabbed onto like a dog thrown a tasty fresh-cut chop.
The second reason is that these created rights in turn led to litigation becoming the preferred tactic of activists, determined to shove their own agendas ahead whatever democracy might say, and shove it ahead more quickly than the democratic process allowed. It also placed the Supreme Court in the position where it became a de facto Politburo, an unelected super-legislator that could override the elected branches of government.
The third reason is that this enshrinement of the Supreme Court as an unelected super-legislature led to the Court becoming less and less about the law and increasingly about politics. Both politicians and the sections of the public which stood to gain or lose depending on the politics paid increasingly close attention to who was appointed to the Courts. This in turn led to the appointment and examination of candidates for the bench being less about whether they knew the law and more about what were their politics and whether they would disturb decisions that the politicians didn’t want disturbed.
The fourth reason is that certain sectors of the population began to believe they were entitled to whatever rights the Supreme Court said they had, whether or not the decisions were legally correct. They didn’t want the decisions which gave them those rights examined too closely or reexamined at all. Continue reading →
