The Kavanaugh Case: Food for Thought

By Dr. Larry Fedewa (October 7, 2018)

A couple of things from the Kavanaugh case stand out: 1) Judge Brett Kavanaugh is a supremely well qualified candidate for the Supreme Court – Irish temper notwithstanding, and 2) the Democrats have not changed tactics in challenging Supreme Court nominations in thirty years.

On July 1, 1987, President Ronald Reagan nominated highly regarded Circuit Judge Robert Bork of the U.S. District of Columbia Court of Appeals for the vacant seat on the U.S. Supreme Court. forty-five minutes later, Democrat Senator Ted Kennedy took to the floor of the U.S. Senate and delivered a scathing condemnation of the nominee. The Chairman of the Senate Judiciary Committee for the Democrat majority was Joseph Biden (D-Delaware) who presided over a grueling and lengthy questioning of the nominee against a backdrop of  a highly personal and insulting news and advertising campaign. The nomination eventually lost both the committee and the full Senate votes. It was the first time in modern history that a nomination to the Supreme Court was treated in such a partisan and heated manner.

The Bork nomination battle was dwarfed in intensity and insult, however, in 1991 when President George H. W. Bush nominated Judge Clarence Thomas to replace retiring Justice Thurgood Marshall on the Supreme Court. Thomas was in his 16^th month as a federal judge and not as well-known or experienced as some other candidates had been. He was, however, known for his conservative interpretation of the law. His confirmation hearings were very contentious, as the minority Democrats were adamantly opposed to the appointment of a conservative Justice to replace the liberal Marshall, even if both were Black. When the hearings were almost concluded, the Democrats brought out a young, Black law professor named Anita Hill, who claimed that the nominee had made unwelcome sexual advances to her some ten years earlier. Her testimony was nationally televised and created a sensation. Judge Thomas was called back to defend himself and gave one of the most memorable speeches in Senate history, calling his treatment by the Democrats a “high-tech lynching of an uppity nigger”. He was approved by a 52-48 vote on party lines.

In 2018, as in the Thomas case, the nomination survived – but only because the party of the nominating President and the Senate majority were the same. The pattern of the Democrat minority, however, was similar to the previous cases of Bork and Thomas. In this case, the last-minute accuser was a white woman and the “incident” was 36 years ago when both were in their teens. Not a shred of evidence was offered (or later found by the FBI) to substantiate her claims. Nevertheless, her testimony was accepted by the media and the Democrat Senators as the gospel truth. The level of intimidation, augmented by threats and loud, hysterical demonstrators in the Senate gallery, bordered on frightening.  In the pattern we have become used to, the opposition now attacks the FBI investigation which was launched by the Republican Chair of the Senate Judiciary Committee to seek collaboration of the accusations as flawed and the reason for rejecting the nomination, even though every Democrat on the Committee had declared their opposition before the hearings even began.

The best summary of the issues involved in the nomination, the accusations,  and their implications was delivered Friday by Senator Susan Collins (R-Maine) in a brilliant speech explaining in detail her decision to vote in favor of the Kavanaugh nomination. By citing specific examples of the Judge’s written decisions and his testimony concerning controversial topics, she illustrated the impartial and non-partisan nature of the judicial role in American jurisprudence and the nominee’s exemplification of this perspective. She also underlined the principles of presumption of innocence and preponderance of evidence in evaluating a judicial appointment – positions abdicated by the Democrats in this debate.

It is clear that the Supreme Court is a political institution now and has been for a long time. Certainly, the partisan nature of the American judicial system was on clear display in 2000 when the Democrat majority of the Florida Supreme Court voted for Al Gore and the U.S. Supreme Court voted for George W. Bush – both along party lines. Clearly, as former President Obama famously said, “Elections have consequences.”

But how important is this politicization of the Supreme Court? On the one hand, it can be vitally important, as in the case of Bush versus Gore. On the other hand, it is not usually partisan. The difference is in the nature of judicial decisions compared to partisan positions on various issues. Generally, opinions on specific issues fluctuate from time to time and case to case. Many issues do not have any partisan advocacy at all. This explains in part the high percentage of unanimous Supreme Court decisions which account for 40%-60% of all their decisions.

Secondly, issues presented to the Supreme Court are always specific situations involving real people, rather than the abstract statements of policy characteristic of political discussions. Indeed, the Court frequently must either set or broaden boundaries on certain behaviors, such a gun control and political donations. Both topics are the subjects of political debate, but the questions before the Court are always very specific situations, namely, who? where? what? when? and why? Court judgements always deal with applications of the law rather than the law itself. This perspective is a basic limitation on partisan interpretation.

The final consideration comes with the charge from the Left that the Supreme Court has become irrelevant because of its partisan identity. The thrust of this argument seems to be that the sacred dogmas of the Left should not be subject to dismissal by any authority at all, let alone a small panel of unelected people, particularly when it is dominated by the opposition.

Adding to the attack is the fact that the Supreme Court is tasked by the nation to use as its ultimate criterion of authority a Constitution which was written in the 18^th century. There is some logic to the Obama argument that the world – and especially the United States of America – has changed in nearly 250 years – from rural to urban, backwater to super power, analog to digital, and every other dimension we can think of. And the pace of change keeps accelerating. Clearly, the founders of this country had no vision of what the country has now become.

How does the Constitution fit into this new world? The answer is that “We hold these truths to be self-evident. . . .” today as the Founding Fathers did in 1776. These truths are the foundation of all that has been built on them over the centuries, and to dismiss or demote this expression of America’s core beliefs would be to break with our past and embark on a new country, to turn our back on all the lessons we have learned as a people who have sought to realize the ideals of personal freedom and equality over two centuries of struggles and strife and failures as well as successes. America’s constitutional government has served us well, has guided our creation of the greatest nation in the history of the world, the shining city on the hill, a beacon to the nations of the earth.

Those who seek to replace it do not understand that the Constitution and the Declaration of Independence represent, not our country as it is, but our country as it must become. Among all the toils and troubles and turmoil and terrors we face, these words are the bright stars which hold us to our course and guide us to the new days ahead.

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