Confirmation process is now a maelstrom of insincerities
WASHINGTON >> The current era of scorched-earth 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-yearold 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 “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 couldn’t be taught about evolution, writers and artists would be censored at the whim of government. …”
America, according to Kennedy, was living 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, the progressives’ pinup who believed in vast judicial deference to majorities. So, Kennedy was asserting that an American majority was eager to extinguish American liberty.
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 wasn’t about jurisprudence.
Four years after the Senate rejected Bork, it confirmed Clarence Thomas, 52-48, after weighing lastminute 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’s the idea that the selection of justices should be tethered to our neverending political campaigns, so 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. The utter emptiness of everything’s an intellectual vacuum into which have flooded histrionics.
Next week, the Senate committee might try to discover pertinent details. If the committee cannot, assisted by Ford’s testimony, this will be instructive. Her courage in exposing herself to examination has earned her a respectful hearing. However, her insistence on prolongations that serve her party’s agenda have earned her quizzical scrutiny.
In recent decades, Congress, the presidency, the parties, the bureaucracy, the media have, by their ignorance and arrogance, earned the disdain that now engulfs them. Yet although the court regularly renders controversial decisions on matters about which the country’s either deeply ambivalent (e.g., same-sex marriage) or hotly divided (e.g., abortion), its decisions are usually broadly accepted as ratifying norms that must be, and soon are, accepted.
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.