Court evolution prompts confirmation histrionics

Constitution Day is a good time to review the evolution of the U.S. Supreme Court’s place in American government, as illustrated by remarks made by Republican Sen. John Kennedy.

Louisiana’s junior senator appeared on Fox News Channel yesterday to offer his assessment of the Judge Brett Kavanaugh confirmation hearings. A member of the Senate Judiciary Committee vetting the promotion of Kavanaugh from the appellate court level to the Supreme Court, Kennedy offered as good as a summation as anybody: “an intergalactic freak show,” adding that many Americans watching the spectacle would think “Congress has hit rock bottom and started to dig.”

Perhaps Kennedy’s sense of valor made him obscure the real reason why people might think so: antics by his Democrat colleagues that, during the hearings, ranged from absurd fakery to absolute genuine fictional political theater. One might expect such posturing from individuals starting presidential campaigns who realize they cannot win on the actual issues so either must manufacture fake ones or distract from their agendas that lose on the merits.

But perhaps the most egregious abuse of the process came from a Democrat in a tightening reelection battle, Democrat California Sen. Diane Feinstein who, after hearings had concluded, alleged Kavanaugh had committed sexual assault. An accuser has come forward with thin evidence to back that claim.

As Kennedy noted, Feinstein apparently sat on the information publicly for three months although she did forward it to the FBI which made it available to all senators. This meant the agency could not conduct a full investigation nor did the committee ever question Kavanaugh about this. In his comments, Kennedy rightly questioned the seriousness of Democrats in believing the validity of the claim and in its use only as a prop.

Such a last-minute revelation with next-to-no evidence supporting it serves two purposes: either somehow to sink the nomination, which seems highly unlikely, or to create a campaign issue that helps not just Feinstein specifically but perhaps Democrats generally, in trying to back unsustainable claims that Republicans somehow are hostile to women, etc. to bolster candidates in this fall’s elections. It smacks entirely of a similar strategy to “high-tech” lynch Justice Clarence Thomas’ confirmation nearly three decades ago using discredited similar allegations.

But there’s a larger issue to all of this. Simply, Democrats have gone to such outlandish lengths – theatrics to such a degree these would cause, as Kennedy says, Americans to assess such low value to their representative institutions as to threaten the very legitimacy of the system – to prevent Kavanaugh’s confirmation because the stakes have become so high. The stakes have become so high because of the enormous power ceded to the U.S. Supreme Court in the American political system.

When the Framers of the Constitution during the 1787 convention and afterwards through media such as The Federalist debated the proposed government, they spent almost no time on the Court. More than any other reason they included the third branch of government to avoid problems under the Articles of Confederation that didn’t have a national judiciary, creating confusion and conflict.

What little they did communicate indicated the Court wouldn’t have a political role. Little about what in modern times has become know as judicial review ever came up in any of these discussions. As far as the historical record goes, the Framers conceived of the Court as an adjudicatory body to hash out disputes over the fine points of law. As for giving any definition to a document they saw as intentionally vague, they figured political battles between the majoritarian bodies would infuse specific applications of Constitutional meaning.

However, it didn’t turn out that way. Over the centuries, the Court took on the role as arbiter of what the Constitution says, with judicial activists coming to assert they largely could overlook the actual wording of it in favor of meaning they could derive and infuse into based upon their own political ideology.

Because this unelected, largely unaccountable, institution could make far-reaching policy as a result, this makes partisans desperate to get onto it those they think will rule according to their desired agendas – more so Democrats, as their ideology embraces a Platonic guardian concept at odds with representative democracy. Thus, they will do anything to shape the Court in ways that will benefit themselves and their allies.

That’s why Democrats have behaved so cravenly throughout this process and thus threatening public perceptions of Congress. Bring the Court’s place in the system closer to the Framers’ original idea and that wouldn’t happen. Yet this will not change, so expect the pattern recently witnessed – especially when Republican presidents nominate – to continue in the future, and any diminution of public disrespect for Congress therefore will occur only as a matter of self-restraint by senators themselves.