Kavanaugh - the least bad option?
SCOTUS Series 001.
Originally posted on Facebook 30 Sep 2018
Kavanaugh would probably be, at best, an undistinguished justice of the Supreme Court. Those wanting a court that puts individual rights before the desires of an overmighty state are unlikely to be cheered by the elevation of someone who served a Bush-Cheney-Rumsfeld administration whose legal team was defined by its attempts to justify torture. In Kavanaugh’s initial confirmation hearings, his suggestion that an exogenous event (9-11) justifies more powers for the executive, was troubling. And I am left with a vague uneasiness that, although he probably did not sexually assault anyone as a teenager, maybe...
Despite all this, I fear that confirmation of Kavanaugh may be the least bad option. We should never have got to this place.
This week’s farce was, perhaps, the logical conclusion of a >30 year trend which has seen the Senate’s role evolve as Senators have, by degrees, moved from a pre-1987 convention that their role was a semi-judicial consideration of the competence of a nominee (ie are they actually a qualified lawyer) to a post 2017 nakedly partisan approach in which the confirmation process is just another battlefield.
In 1987 a Democrat controlled senate departed with the 20th century tradition that the Senate assessed only the competence & professional credentials of candidates proposed by the President as justices of the Supreme Court. Their rejection of Reagan’s nominee, the eminent scholar Robert Bork was based entirely on disliking his philosophy & his originalist view of the constitution. In effect the Democrats created a new standard: if the President’s opponents have a majority in the senate, they need not confirm a Supreme Court nominee with whom they have fundamental philosophical differences.
As the Bork rejection occurred towards the end of the Reagan’s presidency, the result was that the vacant seat on the Supreme Court was not filled by a Reagan nominee, and the power to nominate a candidate for the court passed to his successor.
That successor was Bush Senior who, in 1988, faced another Democrat controlled senate. It unanimously confirmed Bush’s nominee, the moderate conservative Anthony Kennedy. In 1991 Bush’s next nominee, Clarence Thomas, facing a strongly Democrat controlled senate was confirmed by 52 votes; 41 Republicans and 11 democrats. The confirmation hearings ended up slightly circus-like; after initially being concluded, they were re-opened to examine allegations of sexual Harassment by Anita Hill which had surfaced due to a leak. Hill was not treated well, some conservative supporters of Thomas briefed the media with character assassination stories.
Clinton’s nominees were confirmed variously by 96 votes (Ginsberg 1993 by a democrat controlled senate) and 87 votes (Breyer 1994).
Bush Jr’s nominees were confirmed by 79 votes (Roberts 2005 by a Republican controlled senate, with democrats splitting evenly 22 for and 22 including Feinstein & Schumer against) and 58 votes (Alito 2006 by a republican controlled senate; although only 4 democrats voted for confirmation, about a dozen more had opposed the filibuster that John Kerry, Harry Reid, Hillary Clinton, Diane Feinstein and Joe Biden had tried to organise).
Obama’s initial nominees were confirmed: Sotomayer 68 votes (2009, by a democrat controlled senate) Kagan 63 votes (2010 by the same democrat controlled senate).
In 2016 the Republican controlled senate, with just under 9 months until elections in November, declined to confirm, or even begin hearings to confirm, Garland, who was not a compromise candidate by Obama. The Senate GOP’s following of the 1987 Bork precedent set by the Democrats annoyed many 2016 Democrats.
Trump’s 2017 nominee Gorsuch, was supported by a majority of the Senate, but not the 60 Senators required to end a filibuster. This would not usually have been a problem as the minority party had never filibustered such deliberations in the past. Generally no party has controlled the White House and had a 60+ filibuster proof super majority in the senate, but that has not been an issue as (aside from the unsuccessful attempt for Alito in 2006) minorities have not sought to obstruct the appointment of qualified & reputable candidates.
Schumer, a veteran of the 2006 Alito attempt, and now leader of the Senate’s democrats, made it clear that he would oppose and filibuster any candidate that Trump nominated. So the Republicans, following the Democrat’s ‘nuclear option’ senate rule change in 2014, had their own changes to the senate rules, and abolished the filibuster for Supreme Court nomination hearings. Henceforth only a simple majority would be needed. This allowed Gorsuch to be confirmed by 54 votes, only 3 of them Democrats.
Undeterred by the Gorsuch confirmation, this year’s supreme
Court vacancy has had Schumer stating that he wants to keep the seat unfilled until after the 2020 elections (in effect until after the transition, if any, in January 2021).
Trump’s nomination of Kavanaugh was unfortunate. Disastrous as the second Iraq war was, for me its significance is less than the damage done to the standing of the USA in particular, and the west in general, when Bush (probably driven largely by Cheney and Rumsfeld) embraced the use of torture. Throughout WW1, WW2 and the Cold War, the moral position had been simple and clear: torture was a despicable practice used by the other side, which was evil not only in its objectives but its means of pursuing them which included torture, which had no place in the west (other than France). The efforts by the Bush legal team to justify torture, and to have it carried out in a semi-deniable way by third parties (either military contractors or other governments), make me suspicious of all its members, whether or not they were demonstrably linked to Tourture. A decent lawyer with any regard for the values of the USA and its great constitution should have had nothing to do with such a team. And, a decent senate doing its job of scrutiny should have had a laser like focus on this issue, not whether or not Kavanaugh’s fingerprints were on the infamous memos, but his toleration for the abomination created by a team on which he worked
When Kavanaugh was shortlisted, I can understand entirely that Dr Ford reached out to political contacts, who happened to be democrats, and told them about her concerns about Kavanaugh’s teenage behaviour. It seems she did not want her name to come out, had no desire for a media circus, but did want to say ‘maybe look elsewhere for the next Supreme Court justice’. From the testimony on Thursday, I think she is sincere in her beliefs, albeit that I would not bet the ranch on her being 100% accurate about the perpetrator being Kavanaugh.
The problems for Ford, for Kavanaugh, and for the standing of the Senate and the credibility of the process, arose because, it seems, that Senator Feinstein chose to sit on her knowledge of the allegations. Rather than air them in July, and allow Trump to nominate someone else, who could then be confirmed before the November mid terms, she chose to withhold them until the last minute. And then, Dr Ford’s name was leaked, bringing her a day in the spotlight that can have been no fun for her.
I can see no reasonable motive for Feinstein’s delay, other than Schumer’s ‘win at all costs’ approach in which Ford’s desire for privacy is expendable and the possibly innocent Kavanaugh & his family are acceptable collateral damage in Schumer’s desire not to confirm someone with a judicial philosophy other than his own.
Although I hold no brief for Kavanaugh, and would have been very happy had Trump chosen someone else, as would have been an option had the allegations been fed into proceedings in a timely manner, [or had the Senate made an early rejection of Kavanaugh based on the torture issue], the delay and ambush by the Senate democrat leadership has created a lamentable situation from which almost no one emerges well.
Kavanaugh is innocent of teenage assaults until proven otherwise, and no part of the circus has come close to proving any guilt. To have senate hearings in which a judge is grilled about entries in a 1980s high school yearbook, with teenage fart jokes & drinking games, demeans the process.
The senate’s choice is
EITHER: confirm Kavanaugh despite a possible doubt (and despite the torture issue of which they made little in the initial hearings).
OR: fail to confirm him, despite there being no proof of any guilt, thus
A) destroying the good name of a possibly innocent public servant with a record that (my personal disagreements with Bush 43’s legal approach aside) could reasonably be described as solid
B) Encouraging the ‘The ends justifies the means’ scorched earth approach of Feinstein & Schumer by rewarding their cynicism with an important Supreme Court post being left open until after the November 2018 mid terms: an opportunity for them to deny confirmation to any Republican nominee until January 2021 (and, who knows, why not till January 2025 if Trump is re-elected) should the Democrats take the senate in November
C) setting a precedent that Supreme Court nominees should expect an evaluation not only of their professional competence & ethics, but also everything they have said or done since their teenage years. This is, of course, a much higher standard than is applied to politicians running for election. Bush 43 was a famously hard drinker in his early years. Obama in the US and Cameron in the UK all but confirmed youthful use of hard drugs. Whatever ones views on their politics, I think it safe to say that their teenage/twenties hellraising was no impediment to wisdom or electability in later years. And, much as I think he is a ‘Good Thing’, I don’t want our political class to be drawn exclusively from those with the undergraduate habits of Jacob Rees-Mogg. Important as the Supreme Court is (possibly too important, but that is another issue), holding candidates to a higher standard than is applied to Presidents & Prime Ministers seems odd. Furthermore, making such muckraking a standard part of the appointment process, will cause many rather good people to rule themselves out, and will tend to leave the field clear for ideological obsessives who are prepared to sacrifice / endure the onslaught in pursuit of their goals.
D) creating a backlash against the ‘me too’ spirit which has begun a much needed highlighting of harassment. If the movement is perceived as having metastasised into a ‘guilty until proven innocent’ lynch mob, it will be opposed by adherents of due process, and thereby we will miss out on the good that can be done by a broad based initiative to change attitudes. As with smoking in rooms filled with children, or drink driving, peoples attitudes to ‘creepy if not clearly criminal’ undesired advances, are in the process of changing from toleration to opprobrium. That journey in attitudes will be made slower if promoting good manners (opposed by very few) becomes a campaign in which the interests of innocent people are sacrificed simply because, historically instances of false accusation (High profile cases such as Potiphar/Joseph in the old Testament, and Tawana Brawley more recently, aside) have been far rarer than instances of unreported attacks.
No one has a god given right to a seat on the Supreme Court, so I do not think it would have been unreasonable for Dr Ford’s inconclusive recollections to have nudged Kavanaugh out of line for nomination. However, because that did not happen, and Kavanaugh & his family have had to go through what almost amounts to a show trial, to find against him in the absence of proof beyond reasonable doubt, would be to un-American. Ultimately rights are possessed by individuals, and utilitarian attempts to justify trampling on a persons rights in the name of a ‘greater good’ end up saying that no individual is sacred, so de-facto there are no rights of an individual to life, liberty, or the pursuit of happiness, because they are all trumpable by the purported needs of the collective.
I see that, when seats on the Supreme Court are so important, there is an incentive to partisanship that increasingly overrides historic conventions & courtesies which lack legal or procedural force to back them up. But it can not be a good thing to move from the prior practice of justices receiving unanimous, or near-unanimous, endorsement, to a situation where justices barely have the support of 51 senators. Aside from anything else, such an approach will tend to make justices, once confirmed, more party political, and less able to rise above partisanship and undertake objective legal deliberations. Justice Kennedy was proposed by a Republican, but confirmed unanimously by a bipartisan senate. Perhaps that helped give him the detachment that made him a swing vote on the court rather than always voting the ‘republican’ or the ‘democrat’ line.
It is probably good that the senate has an active oversight role. Justice Abe Fortas ended up resigning from the court after ethics scandals, as might have been anticipated given his nomination by LBJ which was attributed by many to a quid pro quo for Fortas’s success as Johnsons’ personal lawyer when he helped Johnson enter the senate by persuading a judge to set aside an initial order secured by LBJ’s opponent due to overwhelming evidence of vote fraud (including 200 votes cast in alphabetical order for Johnson, these two hundred votes alone dwarfed his 87 vote lead)
Although in 1987 I was shocked by the Democrats abandoning convention and blocking Bork, it is not unreasonable to suggest that when the White House and Senate are controlled by different parties, nominations should be the result of a bipartisan consultative process, rather than in the near-absolute gift of the President. But, if the process is to work well, by which I mean it is to exclude those lacking the qualifications, intelligence, or integrity desired and is to encourage the nomination & willing candidature of wise & virtuous lawyers who have many more lucrative career options, it needs to stop being an partisan brawl.
Perhaps we should thank Feinstein and Schumer for illustrating so clearly the flaws in the current process.
As there is general agreement that these positions are of Great importance, One option might be to stipulate that, should the Senate fail to confirm a nominee within a year, the President would have the option of having a national vote on the appointment, with the vote taking place another year later. This would encourage presidents to nominate candidates that could command popular support, rather than just that of their bases. Alas, while tending to bring forward mainstream candidates, this would probably increase the brickbats and bear pit to be endured by nominees, so perhaps it is not the best idea.
A tangential observation: far too much of the debate about the Supreme Court appears to be poisoned by the issue of abortion. In Europe, the public debate, inasmuch as there is one, tends to be about where in the term the cutoff should be (most countries choosing somewhere in the 12 to 24 weeks range). From the distant vantage point of the UK, where the two extremes at either end of the spectrum are sparsely populated, it has seemed that in the USA a large proportion of people, occupy one of those extremes & want either a total ban on abortion, or to permit third trimester abortion on demand. Both extremes of view are held by people who think they are on the side of the angels and both have sought to, and continue to try to advance, their positions through litigation. The pursuit of ‘total victory’ by ‘their’ side has become the prism through which Supreme Court nominations are viewed. I don’t claim to have the ‘right’ answer on this one, but suspect that to have any hope of a stable resolution which is liveable-with by most people, the matter needs to be debated & compromises made by both sides. As an employment lawyer once told me ‘when we agree a settlement out of court, it is usually a number that leaves both sides equally unhappy’. Perhaps ‘equally unhappy’ on this issue is a price worth paying to not only move on from the issue, but also begin to have a Supreme Court embodying the highest ideals of the founders.
Having said all this, the degradation of the Supreme Court confirmation process may be just another symptom of the sad abandoning of the concept of ‘The Loyal Opposition’ & of respect for the fact that honest and well meaning people may disagree with our preferred policies, because they think there are better ways to help the country and its people flourish. In the west, the treatment of Martin Luther King aside, Nixon started the new-soviet approach of treating political opponents as ‘enemies of the state’ to be attacked with the apparatus of the state (penal IRS audits etc) but revulsion at Nixon & his methods kept them off the agenda for over 30 years until Obama’s IRS once again started targeting the President’s political opponents, and his security services began spying on opposition campaigns. I find it difficult to see how left wing friends can support many of the polices that they do, because those policies typically involve excessive coercion and/or have already been tried & have failed. However, I know that they are good people with a sincere desire to help the weakest in society. Similarly I have authoritarian friends who believe that government can advance the moral or material well-being of the people by criminalising victimless activity, I think that they are profoundly wrong, but that does not prevent their motives being laudable. Those with whom we disagree are not deplorable, but are usually well intentioned people whom we have not, so far, persuaded to agree with us. And, on any given issue, they may be right, we may be wrong. The number of actively malevolent people is small, so let’s not get too depressed when ‘the other side’ have their turn in office (I say that as a libertarian for whom both the Democrats & GOP manage to be ‘the other side’)
Happy Sunday everyone.