You might not particularly care if the Senate confirms Brett Kavanaugh to the Supreme Court or not, but we should care very much about the spectacle playing out in the press and social media. The overall effect is to remind us of Washington DC’s status as the center of the universe, how Supreme Court justices necessarily and justifiably wield tremendous power over our lives, and why we should feverishly vote this fall to make sure the bad guys don’t win and inflict their judges on us for the next fifty years.
It’s hysterical, and demeaning. But people understandably feel forced into treating the Supreme Court makeup as a life and death political struggle.
All of this diverts attention from what should be a key issue, if not the key issue, in Kavanaugh’s nomination: the 4th Amendment. Judge Andrew Napolitano, who knows and likes the nominee, makes the damning case that his views regarding the misnamed Patriot Act, FISA courts, search warrants, and domestic surveillance are deeply illiberal and dismissive to constitutionalism.
Kavanaugh’s legal opinions are nothing short of terrible when it comes to an individual’s basic right to live free of government searches, snooping, or seizures of property without specific proof that rises to the level of reasonable suspicion. His record is not one of “originalism,” but rather undue deference to the wishes of a rapacious executive branch.
His nomination will not turn on this, however.
Instead it appears we will be subject to lurid testimony before the Judiciary Committee about the nominee’s alleged high school groping, delivered by his accuser, in a dramatic turn that can only result in two segments of the country adamantly believing and disbelieving her. Are Senators on that committee prepared to act as would-be judges in what amounts to an accusation of criminal conduct? Are they competent triers of fact in a he said/she said scenario from 30 years ago?
These hearings showcase several particularly American phenomena. They’re televised, which turns every Senator into a grandstanding showman intent on bolstering a national image. They’re voyeuristic, taking us inside the presumably boring personal lives of federal judges: Mr. Kavanaugh apparently drinks beer, uses credit cards, holds season tickets to the Washington Nationals, and is either a sexual assaulter or unassailable soup kitchen volunteer. Above all, they inject the phoniest of politics into what should be a simple inquiry into the nominee’s basic fitness as a judge. Even when that nominee is a native of DC, a true company man who has been around the federal government all his life (Kavanaugh worked a stint in the Bush I administration), his Senate interrogators have to make a big show of some imagined clash of worldviews.
Three clear lessons emerge from the Kavanaugh fiasco:
First: the politicization of the Supreme Court is total and cannot be undone. You’d be hard pressed to find an American who views the Court as anything other than an unelected super-legislature that issues sweeping “laws” governing everything from abortion to guns to healthcare mandates to government surveillance and spying. There’s a reason people say any given court decision is “the law of the land.” Justices are black-robed tenured monarchs, selected by presidents as a form of political spoils to carry out a political agenda. They are Republicans and Democrats, liberals and conservatives, and rule accordingly-- starting with their intended political result in any given case, and working backward to fashion a legal argument justifying that result. Judicial activism is triumphant, and no pretense of impartiality remains regardless of the shifting “philosophies” offered for statutory interpretation.
Second: judicial overreach has not limited executive or legislative overreach. The doctrine of judicial review is specious at best, with no support in Article III of the Constitution. Our understanding of Marbury v. Madison is deeply flawed. Yet millions of American kids escape high school believing the Supreme Court is supreme not only over lower federal courts, but also over the other branches of government.
Has this extra-constitutional power assumed by the Court served to limit the unconstitutional actions of those branches? Hardly. Congress runs roughshod over Article 1, section 8, while cravenly refusing to declare war; the General Welfare Clause and Commerce Clause are interpreted laughably; economic substantive due process--read “property rights”-- hasn’t been recognized for nearly a century; the 9th and 10th Amendments are dead letters, the 4th Amendment is on life support; and the entire 20th century serves as stark evidence of the Court’s willingness to rubber stamp unchecked executive power.
Judicial review serves as legal cover for government power, not a check on it.
Third: centralized judicial power is as damaging to liberty as centralized executive and legislative power. Having a single court run by nine humans make top-down decisions for 320 million people is a recipe for disaster. Common law is inherently decentralized; it evolves locally and slowly creates universal precepts (i.e. prohibitions on murder) only when there is near unanimity of agreement across time and geography. The gradual imposition of positive civil law in America, along with the federalization of vast areas of law that once were determined locally, created a federal judiciary that is unworkable and unresponsive to millions of Americans. For the vast majority of us, recourse against the federal government for its lawless acts is an illusion-- we don’t have 10 years and millions of dollars for lawyers.
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The divisive nature of Supreme Court nominations is a feature and not a bug of our federal politics and government.. Truth, justice, and fairness, the hallmarks (or at least goals) of a decent legal system, must give way to tribal war and endless “whataboutism” in any culture where politics predominates. This is what politics does to all of us, and to a judiciary that is supposed to constrain the politicians.
