The Kavanaugh hearings show our broken Court

Summary: The hearings on Kavanaugh provide more evidence that our system is broken. We know it, but are unwilling to make the effort to take the reins and fix it. This will not end well for us.

Eagle Scales Of Justice

Senescence:  the process of deterioration with age.

 

This week we saw another demonstration of our dysfunctional political system at work.

In 1803, the Supreme Court seized immense power for themselves by their ruling in Marbury v. Madison. They gave themselves the unenumerated right – unstated in the Constitution – to overrule Congress and the Executive. Under Chief Justice Warren, the Court seized still greater authority. In Griswold v. Connecticut (1966), they expanded the concept of a “penumbra” to the Constitution to invent new rights. In Miranda v. Arizona (1966), they invented the authority to micromanage the Executive.

That was tolerable when the Federal government was small. But with our government having vast and growing reach, it makes the Justices into unelected lifetime Priests of the Law. At first the Left applauded this, as liberal Courts implemented their policies. I wrote three years ago that they would rue the day they cheered an activist Court. Time has proven that forecast to be correct. Now they panic at the prospect of a Court doing the same to them for a generation.

Both Left and Right now use the Court as a means to impose policies without mandate of the people. Each time they do so, the government’s legitimacy erodes it away a bit more. As usual with our leaders, they weaken America in exchange for short-term gain.

But without elections, the battles to appoint Justices become exercises in raw political power, with no legitimate basis to vet candidates (beyond the basics of education and experience). Each cycle they get dirtier, as each side seeks to destroy the other party’s appointees. The questioning is an exercise in hypocrisy, as the opposition party seeks to create sensational headlines.

This is an inevitable result of appointing people for life to a grossly undemocratic institution with vague but massive powers. These incidents should warn us that institutional reform is necessary.

Paul Krugman: “Kavanaugh Will Kill the Constitution.

Worse, the hearings become attempts to destroy nominees. Their lives back to high school are examined. Political activists whip up hysteria about the consequences of this new Satan assuming the ill-defined powers of our legal priesthood. Who knows what evils they might inflict on America.

Almost inevitably, some individuals volunteer to save the nation with lurid tales from the past. In our society today, these are women. Without evidence, the hearings become serial testimony of guilt and innocence. There was Anita Hill’s attempt to stop Clarence Thomas’s nomination. Unsuccessful, she was richly rewarded for the attempt. Fame, speaking opportunities, and jumping from the University of Oklahoma College of Law, teaching commercial law and contracts, to Berkeley and then to  Brandeis’ Heller School for Social Policy and Management – plus a counsel position with the Civil Rights & Employment Practice group of Cohen Milstein Sellers & Toll.

Now we have the Kavanaugh hearings. A Stanford psychology professor contacted the Washington Post’s tip line in July, before the nomination was officially made. She sent letters to her congresswoman and Senator Feinstein. She hired an attorney (one who downplayed similar accusations by women against Bill Clinton and Al Franken). She does not recall when or where the incident occurred, or many key details (such as how she got the party, or got home). She reports no witnesses to the event (other than the other young man she accuses, who denies the story) — or anyone to whom she told about it at the time. She believes “it contributed to anxiety and post-traumatic stress disorder symptoms with which she has struggled.” Details here.

Opponents of the nominee whip up hysteria. Guilt and innocence are determined purely by group identify. Let the circus begin!

Lynch Mob

Every nominee – assuming the Republicans decide to adopt these tactics – can look forward to the possibility of going through this ordeal. It is our version of the traditional “running the gauntlet.” Even if successful, the scars will remain from reputational damage and stress to the nominee’s family. Combined with the grueling disclosure of every personal detail about your life, the effect is to deter competent successful people from public service. I’m confident it will work if we continue down this path.

Update: let’s tell the Court we no longer value our rights!

Let’s show the Supreme Court justices, present and future, that we no longer value core principles of “due process” and “innocent until proven guilty.” Eventually they will oblige us, and take them away.

“How Strong Does the Evidence Against Kavanaugh Need to Be? …Even if it wouldn’t support a criminal conviction or civil liability, a merely credible allegation is enough to disqualify him.”

Op-ed in the NYT by Kate Shaw (law professor at the Cardozo School of Law).

Benjamin Wittes (a senior fellow at the Brookings) is editor-in-chief of the Lawfare website. He makes this astounding claim: “Kavanaugh Bears the Burden of Proof.” It is rational if you know that “lawfare” is waged against us, using our own system against us.

Planned Parenthood’s leaders say the same thing, stated differently. They believe Kavanaugh should be voted down because of “allegations.”

Update: Americans don’t reform because we know too little

Comments to this are mostly from “changes would be terrible” to “we can’t do that.” All ignore the core truth, coyly expressed on the Supreme Court’s website as “Few other courts in the world have the same authority of constitutional interpretation.” In fact I don’t believe any other nation vests such power — with ill-defined limits — in so few judicial hands (see Britannica’s entry on judicial review, one component of the Court’s powers).

Combining such discretionary power with lifetime appointments and a vastly powerful State guarantees intense struggle for control of it.

In the “keeping us ignorant” file is the WaPo’s Analysis: “Selecting a Supreme Court justice doesn’t have to be a battle royal. Here’s how other countries do it.” They don’t mention that the highest Courts of our peers have far less power, and so avoid our demolition derby selection process.

Conclusions

I wonder if these hearings convince the justices that our system is an illegitimate clown show. Future generations will watch videos of these hearings and think we were fools. They won’t be wrong.

No matter how irrational, this process will not change. Our system is broken and unable to reform. Only our participation can revitalize it.

Imagine undergoing dozens of hours of this idiotic questioning. (The video title is silly.)

For More Information

If you liked this post, like us on Facebook and follow us on Twitter. See all posts about the Supreme Court, about Reforming America: Steps to New Politics, and especially these…

  1. Another American judge weakens the Republic’s foundation.
  2. Should we thank the Court as it rescues us from our bad laws? Or just bow?
  3. The Court overturns two laws passed by Congress. Everybody cheers!
  4. Unequal representation caused problems for Britain in 1776, & will for us soon.
  5. After 230 years, the Constitution needs fixing.

Another broken part of our political machinery

California has a population of 40 million, 68 times that of Wyoming (579 thousand). Both have two Senators. Every 191 thousand Wyoming citizens has a Representative in Congress. Every 719 thousand citizens in California has a Representative. California has the same population as the smallest 21 states. California has 2 Senators; they have 42. While the Senate was never “one man, one vote”, at some point this becomes too inequitable to tolerate.

They were called rotten boroughs in 19th century Britain. Today it erodes away the legitimacy of our regime. At some point, the people of California will get angry. We know this, but our system is unable to reform itself. This inability to make even obvious, necessary reforms is a sign of senescence.

Unequal representation caused problems for Britain in 1776, & will for us soon.

15 thoughts on “The Kavanaugh hearings show our broken Court

  1. On the topic of California (and similar big state woes) are there any reforms that you think could address the problem of under-representation without essentially creating a new Constitution?

    1. SF,

      Break up California into smaller states through a Constitutional amendment. Much as the western territories were divided into multiple States.

    2. SF – Correction to my comment!

      I said that wrong. See Article IV, Section 3 of the Constitution:

      “New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress. … and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.”

      No Constitutional Amendment would be needed to split up California. Just approval of the California legislature (not the governor, apparently) and Congress.

    3. That’s true, but California might not want to sacrifice the economies of scale that they gain by having a single big block together. (I remember hearing similar proposals about Texas.) One thing that comes to my mind would be adding some bonus senators on a fairly miserly scale so that California and Texas have four or five Senators, with every state guaranteed two. But I also see that got edited out of the original post so I hope it’ll be another topic at some point!

    4. SF,

      “but California might not want to sacrifice the economies of scale that they gain by having a single big block together. ”

      Why would a small block of 2 Senators be better than 6?

  2. California has a population of 40 million, 68 times that of Wyoming (579 thousand). Both have two Senators. Every 191 thousand Wyoming citizens has a Representative in Congress. Every 719 thousand citizens in California has a Representative. California has the same population as the smallest 21 states. California has 2 Senators; they have 42. While the Senate was never “one man, one vote”, at some point this becomes too inequitable to tolerate.

    Yes, those are correct numbers for Senate representation. But the Senate is not the only representative body. There is also Congress. And there, California has 50+ Congress representatives, roughly in line with population.

    To make the argument that the present situation regarding the Senate is bad, and that an allocation of the 100 Senate seats in accordance with population would be an improvement, you have to address the whole situation. The argument has to be that weighting of both elected bodies according to population would be better than the present one.

    I agree it would give more power to California and New York. It might make New York and California happier. Implementation would not be simple (you might have to increase the size of the Senate if you wanted to keep some Senate representation for every state).

    But what makes you think that would improve things?

    The comparison of the British system before the Great Reform Bill is not very illuminating. In the 18th and early 19th centuries there were two chambers, an un-elected and hereditary House of Lords, and a Commons elected from seats unchanged by redistricting for 100s of years, despite population changes, with the result that, for instance, the legendary Old Sarum had almost no electors. Maybe none? Dunwich had two MPs despite having fallen into the sea because of coastal erosion. Whereas thriving Manchester in 1831 had a big population and no MP.

    This is not remotely the situation of California. It is well represented in Congress according to population, and its represented in the Senate too, though not in proportion to its population. The result is to have two houses of representatives elected on different principles as a sort of check and balance. This was not at all the situation in England in 1831. In England, the argument was the system had become dysfunctional because of not allowing any representation to large populations. In the case of California you have to argue that the Senate representation has to be commensurate with the Congressional representation – that the basis of representation should be population in both houses.

    Maybe there is a valid argument which outweighs the checks and balances of geographical versus population representation. If so, I have not heard it.

    Its tradeoffs. In the UK at present people have proposed equally sized constituencies, but been then dismayed to discover that parties with more diffuse support still have more voters per elected MP than those whose votes are geographically concentrated. In fact, equalizing constituency size may make this worse. You don’t win them all.

    1. George,

      “It might make New York and California happier. …But what makes you think that would improve things? …This is not remotely the situation of California. ”

      This is trolling.

  3. Please forgive a “re-pub” of a “re-pub.” Here’s a look at this elephant from but another angle, “Victor Davis Hanson offered up the most succinct summary of Blasey Ford’s testimony: “Empathy, Accuracy, and Credibility.

    “The ‘process’ of memorializing Ford’s testimony involved a strange inversion of constitutional norms: The idea of a statute of limitations is ossified; hearsay is legitimate testimony; inexact and contradictory recall is proof of trauma, and therefore of validity; the burden of proof is on the accused, not the accuser; detail and evidence are subordinated to assumed sincerity; proof that one later relates an allegation to another is considered proof that the assault actually occurred in the manner alleged; motive is largely irrelevant; the accuser establishes the guidelines of the state’s investigation of the allegations; and the individual allegation gains credence by cosmic resonance with all other such similar allegations.”

    The foregoing fairly well sums it up for this Ole’ Buzzard

    1. Wayne,

      Thanks for posting that. I’m not a fan of Hanson (except as a historian), but that pretty well nails it.

      It requires centuries of hard work to establish our principles of justice (however imperfectly we execute them). It will take only a generation to throw them away.

  4. Once more … please forgive, but the original article from which the above was taken is well worth sharing here.

    Life in a Gynocracy” by Clarice Feldman at The American Thinker, 30 Sept.

    “The performance of women this week – from Senator Dianne Feinstein to Christine Blasey Ford to the howling mobs on Capitol Hill – made me seriously consider surgically altering my sex. They are demanding special treatment because of their sex and in the process placing all of us – male and female alike – at peril of witch hunts against men and then, in time, against all who will not bow to their rule.”

    Best wishes,

    The Ole’ Buzzaard

    1. Wayne,

      That is an interesting column. Much of that has been discussed here – in considerably more detail and documentation. But the important part was at the end.

      “Really, guys, you have to fight this. You pick your weapon. You can march around in penis hats and accost senators in elevators demanding that since some men have been falsely accused of rape, all accusations of rape must be deemed falsely made. You can call a nationwide strike by men. Let the women dig the ditches, fix the electrical wires and telephone lines, fight all the fires and wars, and conduct all the police work and intricate surgeries. Do all the countless things men do every day to protect all of us – men and women alike.

      “Or maybe, like me, you can vow to never vote for a Democrat again and fight tooth and nail against such efforts to distort our constitutional rights to due process.”

      This is only sort of correct. The thing to protest is what Hanson describes (see upthread, Feldman also links to): the destruction of social norms, built at great cost over centuries. That is the flag to fight under.

      But there is something larger at work here. As with the rise of Rights of the Transgendered (0.5% of the population), a group almost unknown a decade ago, our society is being transformed for a social project without our consent, without care, by political radicals. And we’re passively allowing it. That is the astounding thing, imo.

      We are quite screwed unless that changes.

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