8 October 2018
Cogito Ergo Non Serviam
Brett M. Kavanaugh's Senate confirmation of his appointment to the US Supreme Court was an ugly affair. Saturday, he got the blessings of the upper chamber, 50-48. He took the oath of office almost immediately, and today, he is a sitting member of the highest court in the land. His vote will not be quite as decisive for conservatives as many believe. He replaces a swing voter in Justice Kennedy, but the outgoing justice swung right 90% of the time in the last term. Where his appointment will have the biggest impact is in the legitimacy of the court and the process by which judges are chosen. The rules have become optional.
This journal opposes the filibuster in the Senate as an anti-democratic tool used to thwart the will of the majority. The protection of minority rights is important, but the filibuster had become the rule of the minority in the hands of Mitch McConnell. It's abolition is vital. Nevertheless, it did serve to force presidents to appoint judges with some appeal to the opposite party. Harry Reid got rid of the filibuster for Supreme Court judges and cabinet appointees a few years ago, and Justice Kavanaugh is the result.
If the process were merely a case of putting together 51 votes in the Senate, one could accept the democratic principle involved. However, democracy also depends on open access to information, and that was not present in the recent ugliness.
The White House denied the Senate access to 100,000 or so documents Justice Kavanaugh wrote while he was part of the George W. Bush administration. While executive privilege may apply here, denying the senators access to those documents diminished the credibility of the process. When 42,000 documents were released the night before the confirmation hearings began, the spirit of openness took a blow, while technically, it was honored.
Next, the allegations of sexual assault that emerged should have been handled should have been investigated more thoroughly than they were. The FBI could only follow the guidelines set for its investigation by the White House, and the White House did not want to find the truth. It wanted political cover for a vote to confirm. That is exactly what it got.
The process is clearly broken, but the legitimacy of the court is in doubt even beyond that. Bluntly put, the court showed its true colors in Bush v. Gore, when the Supreme Court of the United States instructed a state's officials to stop counting votes in a presidential election. This violated the spirit of democracy in halting the count, and it was a case in which the Supreme Court had no business. Elections in the US are under authority of the states.
There may come a time when the Democrats hold both houses of Congress and the White House. The Republicans have opened the door for them to ignore all norms. There is nothing stopping such a Congress and White House from abolishing the existing federal court system and replacing it with a different one and stipulating in that legislation that all sitting judges are without jobs. The president could fill all of those new spots and a compliant Senate could approve en masse all of the appointed judges. There is now nothing stopping this.
The Republic is still standing despite the presidency of Donald Trump. The Republic is still standing despite the political actions of the judiciary. The Republic is still standing despite the Congressional abdication of its oversight responsibilities. The real question is how much more stress can the institutions handle?
© Copyright 2018 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Ubuntu Linux.