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.
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!
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.”
Sexual assault is an abuse of power & should not be tolerated anywhere. Allegations of sexual assault against Kavanaugh on top of his shameful record disqualify him to serve on the Supreme Court. This is the time to stand up for Alaska women and women everywhere. #StopKavanaugh
— Planned Parenthood Action (@PPact) September 20, 2018
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.
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
- Another American judge weakens the Republic’s foundation.
- Should we thank the Court as it rescues us from our bad laws? Or just bow?
- The Court overturns two laws passed by Congress. Everybody cheers!
- Unequal representation caused problems for Britain in 1776, & will for us soon.
- 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.