I haven’t watched very much of the Senate confirmation hearings of Supreme Court appointee Judge Kavanaugh. The few minutes that I did watch were so awful that I had to turn away and get my mind someplace else. The confirmation hearings have degraded into a side-show spectacle of partisan politics that are undermining the legitimacy and authority of the once majestic United Supreme Court which is supposed to sit above politics and be an institution of reason that our nation can turn to with its most important and difficult legal questions. In order to serve its role, the Supreme Court must be a court of all the people – Republicans, Democrats, Conservatives, Liberals, Progressives, Capitalists, Socialists, Black, White, Asian, the Religious and the atheist. It is clear that many Americans, including many of our elected representatives, no longer see, and maybe no longer desire, an apolitical court.
I don’t know much about Judge Kavanaugh or whether he’d be a good Supreme Court Justice. The truth is, it’s impossible know how well a Justice will perform until the robe is put on because, once on the bench, Supreme Court Justices often surprise us. Consider that the most famous dissent in Supreme Court history was written by Justice Harlan in Plessy v. Fergusen, the case that, in a 7-1 decision, upheld segregation and created Jim Crow based upon the decision that “separate was equal”. Most scholars and historians now view it as one of the worst decisions in the Court’s history. If I had lived back then and looked at that Court, I doubt that I would have expected Justice Harlan to have been the lone dissenting voice of reason. Justice Harlan was a supporter of slavery prior to the civil war and had grown up on a farm that owned slaves, yet he was the lone dissent in Plessy and other cases where the Court denied equal rights for Black Americans.
Also, it might surprise some to learn that when Justice Ruth Bader Ginsberg was going through her nomination process, there were those who were concerned that she might pose a threat to the decision in Roe v. Wade based upon statements she had made criticizing the decision during a speech. Justice Ginsburg had commented that she thought the reasoning was incorrect, and that, although she agreed with the outcome, she felt the case should have been decided on equal protection grounds rather than on privacy. These concerns did not cause great disruption in her appointment and she was confirmed by a 96-3 majority in a Congress that only had a slight majority of Democrats. Also, it’s important to note that it was Justice Scalia who recommended that President Clinton appoint her to the Court.
Speaking of Justice Scalia, it is well known that he and Justice Ginsburg became very close friends while on the Court together. Justice Scalia, despite his clearly Conservative jurisprudence, was confirmed in a unanimous vote by the Senate that was composed of only a slight majority of Republicans.
Supreme Court appointments have become far too political and we’re seeing the result of this with this awful disgraceful confirmation hearing where we see open warfare being waged between Senators who insult each other and many Americans in their comments. Part of the problem is that politicians are making promises to appoint judges who will produce politically favorably outcomes to hot button topics such as abortion. This damages the process because it undermines our faith that we can come to our Courts and receive a fair hearing before a neutral judge.
The other issue that is lingering in the background of all this is Democratic anger and resentment over the Republican refusal to give a hearing to President Obama’s appointment of Merrick Garland. Keep in mind, it wasn’t just Merrick Garland, the Republicans also refused to hold hearings on many of President Obama’s appointments to the lower Federal Courts, leaving many judicial positions unfilled. Adding insult to injury, since gaining the Presidency, the Republicans have been basically packing the Courts with appointments of individuals, largely drawn from the ranks of the uber Conservative Federalist Society, who some feel are patently biased or unqualified judges. This unprecedented obstruction of a President Obama’s appointees, followed by gleeful court packing, has greatly deepened the political divide in our government and our nation. Furthermore, it undermines the dignity and the moral authority of our Judicial system. I fear that it will take a generation before this wound is healed, provided the political divide does not consume our democracy and the rule of law before the healing can take place.
Lastly, as I listened to the Senators speak about each other, I felt a great sense of loss. Senators spoke about each other and their political rivals as if they were discussing a foreign enemy rather than fellow Americans. As I watch the rule of law being weakened by a profoundly dysfunctional government and witness a nation that it is tearing itself apart from within, I cannot help but feel that we at great risk of losing all that ever made America great.