Let the brawling begin over high court nominee

PRESIDENT Trump has selected Brett Kavanaugh to replace Justice Anthony Kennedy on the U.S. Supreme Court. Now we can settle in and watch as the left does everything it can to torpedo Kavanaugh’s nomination.

This is what Supreme Court nominations have become — pitched battles over ideology, with “litmus tests” used to determine a nominee’s qualifications.

It’s hard to believe now, but the Senate voted 97-0 to confirm Kennedy in February 1988. And that came not long after former President Ronald Reagan’s first pick, Robert Bork, was eviscerated by Democrats and subsequently rejected by the Senate. (Reagan’s second choice, Douglas Ginsburg, pulled his name from consideration after admitting to using marijuana.)

Just a few years later, in 1991, Clarence Thomas endured a bruising confirmation hearing before being approved 52-48 — the narrowest margin in more than 100 years. Vice President Dan Quayle even presided over the vote in the Senate in case it ended in a 50-50 deadlock.

James Piereson, a Manhattan Institute senior fellow, noted in a recent essay in The New Criterion that in the not-too-distant past — the 1950s — justices were confirmed in the Senate by voice vote.

“Few thought this was unusual because few feared the power of the Supreme Court,” Piereson wrote. “That sense of complacency evaporated in the 1960s as the Court began to intervene aggressively into controversial political subjects, such as school integration, police procedures, state legislative apportionment, the death penalty, and abortion.”

The court has become more powerful and thus more controversial, Piereson argues, prompting the sort of trench warfare seen today. Look at the left’s reaction to Kennedy’s announcement. As House Minority Leader Nancy Pelosi so delicately put it, “The future of our democracy is at stake.” Liberal groups vowed to oppose anyone Trump put forward.

Yet there have been comfortable confirmation margins for justices named to the court in the past decadeplus. Chief Justice John Roberts, appointed by George W. Bush in 2005, made it across the finish line on a 78-22 vote. In 2009, the Senate voted 68-31 for Barack Obama’s selection of Sonia Sotomayor (with nine Republicans voting “aye”), and one year later Obama’s second nominee, Elena Kagan, was approved 63-37 (with five GOP votes).

In April 2017, Trump appointed Neil Gorsuch to replace the late Antonin Scalia. Angry that Senate Leader Mitch McConnell blocked Obama’s nominee until after the 2016 presidential election, Democrats filibustered Gorsuch’s nomination but Republicans — following a lead established when Harry Reid controlled the chamber— changed Senate rules to proceed to a final vote.

The margin was just 54-45 for Gorsuch, a rock-solid conservative replacing another. Kavanaugh, by contrast, is a conservative who is in line to replace a justice who, while conservative, provided the swing votes in numerous 5-4 decisions that pleased liberals.

Because the elective branches “often check one another and Congress finds it difficult to pass any important legislation at all,” Piereson writes, we’re left with “a wide field open for judicial intervention.”

And it results in the sort of knock-down, drag-out fighting that lies ahead.