Court selection process infected by ‘ill humors in society’
Although many of the Supreme Court’s decisions have been contested and even condemned, its justices have been remarkably successful in performing the role Alexander Hamilton assigned them in Federalist No. 78: to be “an essential safeguard against the effects of occasional ill humors in the society.” What Hamilton didn’t count on was that the “occasional ill humors in the society” would infect how members of the court are chosen.
The moment during Donald Trump’s presidential campaign when he issued a list of potential Supreme Court nominees prescreened by conservative ideologues guaranteed the extreme politicization we are witnessing. White evangelical Christians in large numbers were able to use Trump’s promise to name judges friendly to their viewpoint as a rationale for playing down all the ways in which the now-president (to be charitable) fell short of their moral standards. Give us the judges, they said, and all else will be forgiven.
The result is the festival of misdirection and ugliness that now surrounds the effort to secure Judge Brett M. Kavanaugh’s confirmation. The ugliness deepened at the end of last week, and things will get no better now that Christine Blasey Ford has agreed to testify before the Senate Judiciary Committee on Thursday about her accusation of sexual assault against Kavanaugh.
“Unless there’s something more, no, I’m not going to ruin Judge Kavanaugh’s life over this,” Sen. Lindsey O. Graham (R-S.C.) said on “Fox News Sunday,” as if there exists an obligation to confirm a man to a lifetime position on our highest court to avoid bringing “ruin” to his life.
The depths to which Kavanaugh’s defenders are willing to sink was underscored when Ed Whelan, the president of the Ethics and Public Policy Center, sent out a tweet thread pushing a mistaken-identity alibi to explain away Ford’s allegations against Kavanaugh. Whelan, a friend of Kavanaugh who is in the thick of the strategizing on his behalf, actually named and posted photographs of one of Kavanaugh’s Georgetown Preparatory School classmates as the possible perpetrator.
On Friday morning, Whelan took to Twitter to apologize for “an appalling and inexcusable mistake.” And on Sunday, his organization’s board announced he was taking “a leave of absence.”
The evangelical conservatives want Kavanaugh on the court, no matter what. “If Republicans were to fail to defend and confirm such an obviously and eminently qualified and decent nominee,” Ralph Reed, the founder of the Faith and Freedom Coalition, told the New York Times, “then it will be very difficult to motivate and energize faith-based and conservative voters in November.”
Note that Reed warned against the failure to “defend” Kavanaugh. Republicans intend to prove their willingness to stand up for him, no matter how unseemly or offensive their campaign becomes.
But that task became even more challenging Sunday night, when the New Yorker reported that Democrats were investigating another allegation of sexual misconduct against him. Kavanaugh denounced the charge as “a smear, plain and simple.”
Between now and Thursday, there will be a heavy burden on middle-of-the-road Republicans to make clear that what Ford says will actually matter, as will Kavanaugh’s own believability, especially in light of questions about the veracity of some of his earlier testimony.
For the longer run, the “ill humors” Hamilton described might be tempered by the choice of moderate judicial candidates, the sort who win praise from leaders of both parties, rather than ideologues.
When you think about it, doesn’t that sound like Merrick Garland?