JUDICIARY IN UNFAIR CROSSFIRE
The current era of scorchedearth politics began five years after there was, according to Christine Blasey Ford, in 1982, an alcohol-soaked party in a suburban Washington home. There her 15-year-old self was, she says, assaulted by
17-year-old
Brett Kavanaugh, who categorically denies this accusation.
On July 1,
1987, just 45 minutes after Ronald Reagan announced his nomination of Robert Bork to the
Supreme Court, Ted Kennedy said in the Senate that Bork’s confirmation would mean that “women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government.”
America, according to Kennedy, was living on the lip of a volcano, with no secure civil rights. None that could withstand the ascendancy to the court of a man whose judicial philosophy resembled that of Justice Oliver Wendell Holmes, who believed in vast judicial deference to majorities.
Kennedy spoke just 288 days after he and 97 other senators voted 98-0 to confirm Antonin Scalia, Bork’s intellectual soulmate. Obviously the Bork episode was not about jurisprudence.
Four years after the Senate . rejected Bork, it confirmed Clarence Thomas, 52-48, after weighing last-minute accusations of past sexual misbehavior — talk, not touching. The next two justices, Ruth Bader Ginsburg and Stephen Breyer, were confirmed with just three and nine opposing votes, respectively. Since then, however, the five justices confirmed (John Roberts, Samuel
Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch) have had between 22 and 45 votes against them.
All were eminently qualified, but none were more so than Merrick Garland, the shabby treatment of whom was supposedly justified by a terrible and profoundly anti-constitutional idea that fuels today’s conflagration. It is the idea that the selection of justices should be tethered to our never-ending political campaigns, so that the court will reflect voters shifting constitutional preferences.
Hence the confirmation process has followed the crumbling, descending path the rest of American politics has taken into the depths of cynicism, faux outrage and pandering to the parties’ hysterical bases.
Next week, the Senate committee might try to discover some pertinent things about the Kavanaugh/Ford party. If the committee cannot make such determinations, assisted by Ford’s timely testimony, this will be instructive and probably dispositive. Her courage in exposing herself to examination and opprobrium has earned her a respectful hearing. However, her rejection of multiple hearing options and her insistence on prolongations that serve her party’s agenda have earned her quizzical scrutiny.
This debacle du jour dramatizes how the court’s stature is hostage to the degrading confirmation process, which has become a maelstrom of insincerities. The justices who emerge from it suffer subtractions from the dignity that gives their decisions momentum for respect.
The judiciary is (Alexander Hamilton, Federalist 78) “the least dangerous” branch because, having “no influence over either the sword or the purse,” it has “neither force nor will, but merely judgment.” Its judgments, however, can be uniquely powerful because they rely entirely on the moral authority of conscientious reasoning explained in writing.
Next week, the committee’s senators, most of whom are fungible and easily replaceable, should try to minimize the damage their theatrics do to the government’s least damaged institution.