What truths the Kavanaugh investigation and confirmation process has revealed:
- Kavanaugh’s confirmation proves once again that the courts, especially the Supreme Court, are political.
One of the dominant myths of our political culture holds that the courts are nonpartisan. As Chief Justice John Roberts declared by way of an analogy to the role of baseball umpires in the “job” of judges “is to call balls and strikes and not to pitch or bat.”
The myth of judicial impartiality dates back to the earliest days of the republic, more than two centuries before Roberts was elevated to the court. Writing in 1788 on the “Judiciary Department” during the debates on the ratification of the Constitution, Alexander Hamilton described the proposed judicial branch of government in Federalist Paper No. 78 thusly:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.
The judiciary … has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment…
Hamilton went on in No. 78 to advocate for lifetime judicial tenure so as to ensure the “independence of the judges,” which he reasoned “is requisite to guard the Constitution and the rights of individuals.”
These are fine words, penned by one of the most gifted of the Founding Fathers. Believing in them is essential to accepting the court’s legitimacy.
Sadly, in practice, the country has only occasionally lived up to Hamilton’s lofty ideals. Armed with the power of judicial review—the authority to declare acts of the executive, Congress and the states unconstitutional (or conversely, to uphold them), established by Marbury v. Madison in 1803—the Supreme Court has assumed enormous political power.
According to a joint analysis prepared by the Congressional Research Service and the Library of Congress, the high court had declared 182 acts of Congress and 1094 state statutes and ordinances unconstitutional as of Aug. 26, 2017. In addition, the court had overruled, in whole or in part, 236 of its prior decisions. The analysis did not include an aggregate tally of the number of presidential executive orders the court had nixed.
In and of itself, power is neither good nor evil. The issue, always, is how power is wielded.
In its finest moments, the court has exercised the power of judicial review on behalf of minorities, the weak and the disenfranchised. In its Brown v. Board of Education ruling in 1954, for example, the court repudiated the doctrine of “separate but equal” in public schools. In 1973, it recognized the right of women to have abortions in Roe v. Wade. In 2015, in Obergefell v. Hodges, it invalidated state prohibitions on same-sex marriage.
More commonly, however, the court has wielded its power to further the aims and interests of dominant elites. To cite just five examples from the distant and recent past: In 1857’s Dred Scott v. Sandford, the court nullified the Missouri Compromise of 1820, holding that African-Americans could never become U.S. citizens. In 1894, in Plessy v. Ferguson, it upheld the “separate but equal” doctrine ultimately overturned in Brown. In 2010, in Citizens United v. Federal Election Commission, the court opened the floodgates to unlimited campaign spending. Five years ago, it gutted the Voting Rights Act in Shelby County v. Holder. And earlier this year, it upheld the president’s Muslim travel ban in Trump v. Hawaii.
It’s small wonder, then, that presidents in every era have attempted to stack the bench with justices who share their ideological biases. Kavanaugh’s nomination is by no means the first to expose the ugly partisan underbelly of the process.
We’ve been here before, and not long ago. In 1969 and 1970, respectively, the Senate rejected Nixon nominees Clement Haynsworth and G. Harold Carswell because of their regressive views on segregation and civil rights. In 1987, the Senate turned aside Robert Bork, one of the chief architects of the legal theory of “originalism,” who in 1973 as solicitor general fired special Watergate prosecutor Archibald Cox in the infamous “Saturday Night Massacre.” In 1991, the Senate barely confirmed Clarence Thomas in the face of sexual harassment allegations brought by law professor Anita Hill and several other women.
In Kavanaugh, President Donald Trump selected a longtime GOP operative, who before his initial appointment as a district court judge in 2004 had worked as Whitewater independent counsel Ken Starr’s right-hand assistant, helping to draft the 1998 report to Congress that led to the impeachment of President Clinton. Following his stint with Starr, he joined George W. Bush’s White House, eventually becoming the president’s staff secretary. Since his elevation to the Court of Appeals in 2006, he has amassed a record that shows extreme hostility to the rights of consumers, voters, women, the LGBTQ community, workers and immigrants.
Even more attractive to Trump are Kavanaugh’s expansive views on presidential prerogatives and powers. In a 2009 article for the Minnesota Law Review, in an apparent about-face from his service on Starr’s legal team, Kavanaugh argued that sitting presidents should be immune from both civil suits and criminal prosecutions. Who better than Kavanaugh to protect Trump against special counsel Robert Mueller should proceedings involving the Russia investigation reach the Supreme Court?
Any pretense that Kavanaugh would bring the kind of independence and measured demeanor to the high court envisioned by Hamilton was laid to rest on Sept. 27, when he appeared before the judiciary committee to rebut the allegations of attempted rape lodged by Dr. Christine Blasey Ford. Red-faced, lips curled into an angry snarl, he barked out an unhinged conspiracy theory worthy of Alex Jones or Rush Limbaugh:
“This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.”
The remarks prompted The New York Times to publish an open letter signed by over 2,400 law professors, announcing their opposition to Kavanaugh. “Judge Brett Kavanaugh,” the letter asserted, “displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.”
The Republican-controlled Senate, willing to consolidate political power at all cost, disregarded the letter.
- Kavanaugh’s confirmation signals the triumph of a judicial counterrevolution.
Kavanaugh’s confirmation represents the culmination of a multi-decade effort by the most revanchist sectors of the right to seize control of the justice system and neutralize the use of law as an instrument of progressive social and economic reform.
If the rise of the right in Trump’s America has established anything, it is that constitutional norms are fragile. Today’s political fringe is tomorrow’s ruling bloc.
- For the time being, white male privilege has trumped the rights of women.
Trump and his enablers will eventually pay a heavy price for placing Kavanaugh on the court and, more generally, demeaning women and scapegoating minorities. The only question is when.
- Elections matter.
In an unusual display of honesty, the Trump Administration has revealed their political intentions.
The right understands the critical importance of the courts. The left doesn’t. That will have to change if the conservative counterrevolution is ever to be defeated.
- If the Democrats take back the House, Kavanaugh will face further investigations and possible impeachment.
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This article is adapted from the writings of Bill Blum, who is a former judge and author (“Prejudicial Error,” “The Last Appeal” and “The Face of Justice”).
David Dailey switched from the Republican party in 1972 when he lived in Indiana. David recently wrote to a close friend that at I.U. I learned about equality, history, consumerism, science, the environment, and psychiatry. Our president is sick. Most of my 4,000+ FB contacts are either upset or resigned to this Supreme Court thang. I’m glad that I have no case headed to the Court and will not live much longer. My daughter’s generation will have to figure out how to survive. My immediate prayer is that POTUS and Justices K. and Thomas will be impeached by the House of Representatives in 2019. If we are to believe social media, we are headed to another revolution… even POTUS is threatening violence if things don’t turn out his way.