If the Kavanaugh nightmare demonstrates anything, it is the need to reform how U.S. Supreme Court justices are selected. This requires coming to terms with the court’s historic role.
Most cases before the court are not about great constitutional issues but rather merely tough disagreements about the interpretations of federal statutes, and conflicts among the federal circuits and state courts on a range of civil, criminal and corporate issues. Most are beyond the comprehension of practicing attorneys because the latter are relegated to intellect-dousing, hyperspecialization in areas like real estate, finance, patents and the like.
To deal with the range of issues that comes to the court, we should select from among generalists that sit on the appellate courts and outstanding scholars with robust experience and interests. Lawyers who demonstrate an unusual appetite and capacity for variety and the energy and insight to craft durable, though not eternal, decisions.
In recent decades, presidents have shifted remarkably well in that direction. Justice Brett Kavanaugh and Justice Elena Kagan offer examples from each side.
In contrast, when President Eisenhower appointed Chief Justice Warren, the court was genuinely political. Warren was governor of California with no judicial experience, and he joined three justices who were former senators and two who served as attorney general for the presidents who appointed them.
These days, they may be textualists or otherwise but by and large, the justices are outstanding legal scholars with a passion for fairness, but what is fair?
Those ethical and moral judgments should be the province of the political branches, but since the dawn of the Republic members of Congress and presidents have been at war among themselves about states’ rights, race and civil rights. All reflecting deep divisions among Americans drawn across regional, ethnic and class lines.
Going well back into the 19th century, the Supreme Court has settled political issues Congress could not resolve and conflicts among federal circuit decisions and state laws that impose unworkable requirements on individuals and businesses.
Generally, it does so well but sometimes rather badly. Plessy v. Ferguson (1896) upheld racial segregation in schools, and Dred Scott (1857) limited federal latitude to prohibit slavery and protect the civil rights of free blacks in Northern states and territories, and ultimately that contributed to Lincoln’s election and the Civil War.
Liberals who lean so heavily on stare decisis regarding Roe (1973) and Planned Parenthood v. Casey (1992) ought to remember under that doctrine Brown v. Board of Education (1954) should never have happened and schools should still be segregated.
Abortion, gay marriage and the latitude of regulatory agencies to impose CO2 emission rules when Congress has failed to act are why we fight over who gets on the court — not judicial competence.
It was laughable when Sen. Mazie Hirono said that Christine Blasey Ford’s charges must be true effectively because Kavanaugh embraces conservative legal views and Sen. Kamala Harris accepted that a mere accusation of sexual misconduct was enough to disqualify because both are trained lawyers. But it was understandable given the political stakes.
These days, presidents don’t send up unqualified scholars, and Supreme Court confirmations are political campaigns — so anything goes, including character assassination.
The Democrats and especially liberals view losing elections as the papacy would church burnings. Liberal moral and political judgments are not merely different than those of conservatives. Rather, liberals are holy and conservatives’ are evil — the latter’s beliefs should be classified among the heresies of the vilest personalities.
Consequently, Democrats have declared Donald Trump invalid and all Supreme Court appointees he may send up are illegitimate and fair target for the most false and destructive attacks.
Recognizing the inherently political role of the court and that liberals no longer feel bound in their conduct by elections when they lose, the best we can do is assign each political party an equal number of appointments. The president could alternate between consulting with the Democratic and Republican members of the Senate Judiciary Committee much like the possession arrow in college basketball.
We simply can’t expect decent men and women to accept nominations or our polity to survive if the cynical tactics of Sen. Dianne Feinstein and her co-conspirators are to keep occurring. The last time passions were this high, the Civil War resulted — and don’t for a moment think this, too, can’t end in violence.