Tell me no more fairy tales about the independence of the federal judiciary. The Supreme Court, in particular, has become an extended arm of the presidency of the United States.
That is true of Democrats and Republicans alike, and it is as evident as night follows day as we begin the charade that almost certainly will end with the confirmation of Judge Brett Kavanaugh, a true Washington insider, to the high court.
Kavanaugh will win, perhaps decisively, because President Donald Trump has nominated him and Trump will insist that all Senate Republicans vote for confirmation, even as virtually all Democrats vote no.
Oh, we will go through drawn-out shouting from both sides. The Democrats will delay as long as possible, as much to please their base as to lodge real objections. Republicans will counter that Kavanaugh is the perfect answer to a liberal court.
But the sturm-and-drang will be nothing more. We are just seeing another act in the well-worn Washington play that was written about a century ago.
A little history, if you please:
In 1925, a rising Alabama lawyer and politician, Hugo Black, decided he would run for the senate. But first he had to resign from the Ku Klux Klan. Unbelievably, he wrote his resignation on the stationery of the Grand Dragon of the KKK.
Seated in a hearing room, the senate committee heard rumors about the KKK but discounted them. The committee sent Black’s nomination to the floor, where the full membership voted overwhelmingly to confirm him.
Black was one of the nine justices who unanimously outlawed school segregation in 1954. He had evolved.
At the time, Republican California Gov. Earl Warren was serving as the court’s Chief Justice, an appointee of President Dwight Eisenhower. Warren had evolved from staunch conservative to a middle-of-the-road justice. His sponsorship of the decision surprised just about everybody who followed the politics of the day.
Since that time, many other appointees have surprised the presidents who nominated them. President George H. W. Bush put forth a New Englander, David Souter, as a staunch conservative. Over time, Souter joined the liberal wing of the court, to the surprise of Bush and the Republicans who confirmed him.
Kavanaugh has all the credentials of a very conservative judge: Over 300 rock-solid decisions on the appeals court, solid backing from the Federalist Society and the Heritage Foundation, experience in the George W. Bush administration.
From Georgetown Prep, where new Justice Neil Gorsuch also attended, to Yale and on into government, Kavanaugh’s story is one of unwavering conservatism. Might he change over time? Nobody can say.
He probably will not reveal very much at his confirmation hearings. No nominees ever do. And that is a shame.
The television commercials will do the talking for and against him. Each side intends to spend $10 million or more in the next few weeks. Democratic senators up for reelection in states Trump won will be under grinding pressure from Democrats to oppose Kavanaugh, even though that could cost them their seats.
No more quick up-or-down votes. Instead, we will hear months of arguments, mostly without merit. The job is so vital to democracy, the campaigns should be much more thoughtful.
In the words of his Democratic-leaning Yale professor Akhil Reed Amar, the process is “badly broken, alternating between rubber stamp and witch hunts.”
Kavanaugh was a thoughtful and intelligent student who deserves to be confirmed, the professor declared.
Amar continued, what is needed is “honest discussions of one’s current legal views (that) are extensively proper, and without them confirmation hearings are largely pointless.”
Highly unlikely, that. Republicans are extremely wary of answers on such divisive issues as Roe v. Wade, the 46-year-old Supreme Court decision affirming a woman’s right to an abortion in most instances. Kavanaugh is not the obvious person to answer whether the law should be overturned.
Yet it probably is the reason President Donald Trump got elected, because evangelists generally rate abortion their number one issue and they believed Trump would select justices who shared their views.
A few Democrats have begun talking about increasing the membership to more than nine justices to get around Trump’s coming majority on the court. If one more current justice should retire or become incapacitated, conservatives would have an overwhelming majority.
“If that happens,” said Economist columnist Lexington, “the Supreme Court’s reputation as a neutral arbiter above the partisan fray, which is already shaky, would be kaput.”
So presidents giveth, and presidents taketh away.
Already, judges down to the district court level are identified by the D or the R behind their names. Sometimes the media notes the president who nominated the judge giving a controversial ruling.
Conservatives favor judges who read the U. S. Constitution as it was written centuries ago rather than those who try to apply it to modern-day circumstances.
But the Third Article of the Constitution didn’t contemplate judges as an extension of the presidency. That is a modern-day revision, ready-made for those in power.
Reg Murphy, a St. Simons Island resident, is a former publisher of the San Francisco Examiner and the Baltimore Sun.To contact the him, email firstname.lastname@example.org.