Who is the victim of a politicized nomination? Not so much the nominee (confirmed or not) as the country itself.
After listening to a considerable amount of the testimony of Judge Kavanaugh before the Senate Judiciary Committee, we conclude that no matter who would have been nominated to the Supreme Court from a US appellate court, he or she would likely have been well qualified. To rather simplistic, ideologically driven questions — or, on the other hand, to the softball questions handed to Judge Kavanaugh — he ran circles around the senators with his profound analysis of the judicial process and his instant recall of case after case, down to their critical details, that shed a very different light on them than the agenda behind the question. Is Judge Kavanaugh an exception? We doubt it. At the highest levels, the American judicial system is awash in talent, and it is a system radically different from the political one. Judge Kavanaugh made that clear. We are confident that his colleagues could have done essentially the same.
That is why we welcome the position of Sen. Lindsay Graham (SC), who said that he voted for liberal nominees to the Supreme Court put forth by President Obama because they were well qualified. Judge Kavanaugh is well qualified. The same political maturity should govern Democratic votes for a conservative nominee.
However, to our dismay, the Supreme Court’s advice and consent process has been deeply politicized.
It originated with Sen. Ted Kennedy’s over-the-top fear mongering about nominee Robert Bork in 1987 (with Bork’s confirmation, “rogue police could break down citizens’ doors in midnight raids,” etc.); continued with forceful, unproven charges (sexual harassment) and countercharges (race card) at nominee Clarence Thomas’ hearing in 1991; and then with the lack of a hearing altogether for nominee Merrick Garland in 2016.
Against this background, it is hardly surprising, but no less dismaying, to witness the instantaneous decisions of virtually all senators to vote for or against Kavanaugh without first hearing him out and without scrutinizing his record on the bench; the rude disruptions at the Kavanaugh hearing; the blatant political grandstanding there, most notably by Cory Booker (NJ); the very late release of some documents and the failure to acknowledge the early release of many more documents pertinent to Kavanaugh. As if all this were not bad enough, we now have a thinly veiled attempt to bribe Sen. Susan Collins (Maine) to vote against Kavanaugh.
As for the harassment charges against the judge, as of this writng some Republicans on the Judiciary Committee would prefer not to hear from the accuser and some Democrats would prefer to delay hearing the accuser. We favor neither preference. The charges should be heard because they are relevant, and they should be heard now because Sen. Diane Feinstein has had this information since July. Let the committee decide on the credibility of the charges and either vote yes on Kavanaugh in time for the new Supreme Court term in October, or vote no and move on to the next candidate.
It all boils down to this: If one believes that the country will suffer drastic damage with the confirmation of a given Supreme Court nominee, what is more important — to stop the nomination no matter the tactic; or to preserve the integrity of the process? We favor the integrity of the process above all, and for four reasons, whose gravity we list in ascending order.
First, no matter how bad a Supreme Court justice might turn out to be, the country will survive him or her. The US survived pro-slavery Judge Roger B. Taney of the Dred Scott decision and separate-but-equal Justice Henry Billings Brown of the Plessy v. Ferguson decision. Without discounting the suffering these decisions caused, the country survived them. It can surely survive Judge Brett Kavanaugh, whose record, even on its worst reading, hardly approaches the dire nature of the Supreme Court’s worst decisions.
Second, past performance is no guarantee of future returns. In many cases but not all, one cannot predict the judgments that a nominee will make once on the Supreme Court. Recent example: David Souter, a conservative nominee who, once on the court, turned out to be very different.
Third, the politicization of Supreme Court nominations is essentially not inherent to the nomination process itself. It is caused by the abdication of both Democratic- and Republican-controlled Congresses to pass laws that address many of the fundamental issues in the country, thus punting them to another branch of government: the courts. Excessive responsibility thrust on the courts sharpens the nomination process beyond its former, mostly smooth and uncontroversial nature. Gridlock in Congress is Congress’ problem; the fix is better representatives of the people. The fix lies not with a degradation of the Supreme Court nominating process, but with with Congress and the electorate.
Fourth, and most important, a breakdown in the Supreme Court nomination process brings much deeper and more long-term damage to the country than any judgment a particular Supreme Court Justice might make. This court is the highest in the land. Any court in this land rests on dignity. Any nomination to any court in this land requires dignity. All the more so a nomination to the Supreme Court. A derogation of this dignity — such as rudeness and grandstanding at the hearings, such as attempts to all but bribe a senator — damage much more than the nominee. The Supreme Court itself is damaged and more broadly the respect for all courts in the land is damaged. Hence, our profound dismay.
Copyright © 2018 by the Intermountain Jewish News
