In my column of July 16, “Supremely Undemocratic,” I argued that the elevation of our Supreme Court to the role of a super-legislature has degraded the politics surrounding the nomination and confirmation of Supreme Court justices. I think the antics surrounding the hearing on Brett Kavanaugh last week have proved my point.
Those who followed the Kavanaugh hearing on television or read about it in the press saw the Democrats, literally seconds into the beginning of the hearing, begin to disrupt the proceedings with parliamentary inquiries, requests for more documents, etc., etc. In doing so they were aided by paid protesters who made Colin Kaepernick appear to have the dignity of Washington and the wisdom of Lincoln.
The Democrats know their chances of actually derailing the Kavanaugh nomination are small: Fifty-one senators—including the newly-appointed replacement for John McCain—are Republicans, and none shows signs of opposing Judge Kavanaugh. Thanks to the elimination of the filibuster—begun by former Democratic Senate Leader Harry Reid and completed by Republican Senate Leader Mitch McConnell– that will be sufficient to confirm Judge Kavanaugh. Moreover, it’s quite possible that several Democrats, facing tough re-election battles in states which President Trump carried in 2016 and where he remains quite popular, may vote to confirm Judge Kavanaugh as well.
But many Senate Democrats will nonetheless at least go through the motions of trying to derail the Kavanaugh nomination, not because they think they can succeed, but because they want to vent their anger at the treatment of President Obama’s last Supreme Court nominee, the able Judge Merrick Garland, whom the Republicans denied a hearing and whose nomination is now moot. The Democrats believe Judge Garland was treated with gross unfairness, despite the fact that former Vice President Joe Biden, when chairman of the Judiciary Committee, said no president should nominate a Supreme Court justice in a presidential election year, and other Democratic Senators, including then-Senators Barack Obama and Hillary Clinton, used the filibuster and other parliamentary tactics to try to thwart former President Bush’s Supreme Court nominees.
Moreover, many of the Senate’s Democrats want to show their party’s base that however inevitable the confirmation of Judge Kavanaugh may be, they tried their best to defeat him. This is especially important for Senators planning to run for President, including the two most aggressive members of the Senate Judiciary Committee—Senators Kamala Harris and Cory Booker–which must hold hearings and vote on a recommendation to the entire Senate on Judge Kavanaugh before the Senate votes on his confirmation. Senator Booker, by the way, was especially pathetic as he said he would risk expulsion from the Senate by leaking classified documents which, in fact, had actually been declassified.
The one bright spot in the hearings last week, other than Judge Kavanaugh’s personal conduct in the face of Democratic hostility, was a brilliant speech given by Republican Senator Ben Sasse, who offered a basic civics lesson far more ably than I did in “Supremely Undemocratic.” He argued that the Congress has abdicated too much legislative power and responsibility to the Supreme Court and should seek to reclaim its role as America’s supreme legislature rather than to allow debates and hearings on Supreme Court nominees to degenerate into the miserable spectacles which many Supreme Court confirmation battles have become.
And as I argued in “Supremely Undemocratic,” Congress and the state legislatures should spend more time modifying, or, through the constitutional amendment process, reversing Supreme Court decisions they don’t like. In a political system founded on the principle of representative democracy, the most important decisions should ultimately be made by the people’s democratically elected public servants, and not by the unelected and unaccountable. We could thereby put a stop to the practice of using confirmation hearings as exercises in trying to predict how prospective Supreme Court justices might rule on subjects as well as exercises in character assassination directed at nominees whom we think might rule “wrongly.” The hearings would then become simple examinations to determine the degree to which nominees possess the requisite experience, integrity, and ability to judge, with the understanding that their judgments can be overturned through appropriate constitutional means, should Congress and the state legislatures—the people’s institutions—so decide.
Of course, the chances of this actually happening are probably nil. No doubt, once Judge Kavanaugh is confirmed, the next Supreme Court nominee, whether chosen by President Trump, or President Harris, or President Pence, or President Booker, or anyone else, will be the subject of hearings just as bad, if not worse, than those being currently conducted. And each side, Democratic and Republican alike, should know that whatever tactics have been used in the past, or are being used today, will be precedents for future use as well.
Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present). He was Mayor Pro Tem of Stephenville from 2008 to 2014. He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.