Brett Kavanaugh’s Supreme Court hearings are set to begin tomorrow. The goal is to have him seated by the beginning of the Supreme Court’s fall term in October. With the Republican majority in the senate, he will likely have the votes to be seated in that timeframe, however, that does not mean this hearing will be an easy one for the nation to watch or be consistent with the vision of the framers.
Since the bloody nomination days of Robert Bork, (see my law review commentary publication here on Bork) the Supreme Court hearing process has become more of a theatrical display of ways to score cheap political points with respective party bases during times of political turmoil. Instead of vying to ask tough questions on the nominee rooted in philosophy and adherence to the Constitution it has instead become a competition as to which senator will sensationalize the most in an attempt to embarrass the nominee. The leftist senators since the days of Ted Kennedy have insulted the intelligence of the American people and the process by asking inappropriate questions, mostly coming from the same guidebook of controversial social policy or in Clarence Thomas’ situation, lies about his career and personal life to embarrass him in front of the nation. In describing his experience, Justice Thomas was correct in boldly describing it as a “high-tech lynching.”
These reactions come out of a sense of fear that the unconstitutionalist senators have that constitutionalist judicial nominees are a threat to their agenda. Nominees like Robert Bork, Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh cannot be bought and are not willing to act as legislators or rubber stamp for an agenda. Their respective philosophies while containing slight nuances and differences in certain contexts, are generally united by originalism, textualism and judicial restraint. Those buzz words have incited fear in the minds of the unconstitutionalists such as Ted Kennedy, Chuck Schumer, Al Franken, Cory Booker, then-senator Barack Obama and scores of others. These words reflect that the priority of these nominees is to not promulgate social policy from the bench to the detriment of the Constitution like other judges are more than willing to do such as Ruth Bader Ginsburg and Sonia Sotomayor. Rather, they are bound by the structure and text of the Constitution. In the end, the Constitution is what they answer to- not to the movements in society and so called “evolving times”.
During the hearings you will undoubtedly hear questions such as, “how you would rule in Roe v. Wade” or in Gorsuch’s case “you ruled for a trucking company, you must be against the little guy”. In the worst example, Ted Kennedy promoted lies with regards to the Bork nomination, “In Robert Bork’s America- women would be forced into back alley abortions and African-Americans separated at lunch counters.” These are just a few truly disgraceful examples of how low the unconstitutionalists and left will go to try and sink a nominee. Americans should be ashamed of this and demand accountability for this inappropriate and unprofessional behavior. One should not be painting a broad brush on a nominee based on a decision they rendered or force them to answer for a decision they took no part in such as Roe. They must, however, answer questions based on their philosophy and why they adhere it. At that point, reasonable conclusions can be drawn on deciding to vote for or against a nominee.
Do not be fooled and buy into the drama and cheap political pandering- take the nominee based on their qualifications and adherence to the Constitution. That is the chief litmus test. Do your own independent research on articles they have written or read cases they wrote decisions and dissents in. You will not be able to discern the true nature of a nominee based on lies and propaganda on the senate record during the hearings. By conducting your own research, you will formulate your own opinion while at the same time growing in intellect, no matter the outcome you reach.
As so eloquently stated by James Madison and Alexander Hamilton in the Federalist Papers, judges are to not be viewed as legislators and the Supreme Court should not be viewed as a legislative body for producing laws and crafting social policy.
In Federalist 47, Madison quoted Montesquieu and wrote, “were the power of judging joined with the legislator, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.”
In Federalist 78, Hamilton, wrote when discussing the role of the judiciary, “it may truly be said to have neither FORCE nor WILL, but merely judgment.”
We as a nation must reflect on the reality currently faced with these hearings and look to return them to a decorum of fair evaluation in assessing the future guardians of the Constitution. This process has become reduced to nothing more than a campaign for the next legislator to stamp agendas. We can begin by stopping the dark money ads that promote lies about nominees and pressure members of the senate to vote in a certain direction. This is not a political campaign and should not be treated as such. Closed door meetings with nominees should not be on the front page of newspapers the next day, providing ripe material for the media to distort.
While this process may not entirely escape politics in the sense that a democratically elected president has the power to appoint Supreme Court justices and this is a viable ground for voters to decide on election day; it does not mean that once that power is exercised it should result in partisan bickering. The political influence should end once the appointment is made and from that point after, it is a question of qualifications with an assessment of judicial philosophy.
It is shameful that we have drifted so far from the vision articulated by Federalist Papers and have allowed self-interest and personal gain be put before respect for the Constitution and process. Be attentive, however, to these hearings and be mindful of the distortion machine that will be persistent, but respond with holding the unconstitutionalists accountable for their actions before the next Supreme Court vacancy.