September 23, 2018

The Supreme Court Confirmation Process Has Become a Maelstrom of Insincerities

The current era of scorched-earth politics began five years after there was, according to Christine Blasey Ford, in 1982, an alcohol-soaked party in a suburban Washington home. There her 15-year-old self was, she says, assaulted by 17-year-old Brett Kavanaugh, who categorically denies this accusation.

The current era of scorched-earth politics began five years after there was, according to Christine Blasey Ford, in 1982, an alcohol-soaked party in a suburban Washington home. There her 15-year-old self was, she says, assaulted by 17-year-old Brett Kavanaugh, who categorically denies this accusation.

On July 1, 1987, just 45 minutes after Ronald Reagan announced his nomination of Robert Bork to the Supreme Court, Ted Kennedy said in the Senate that Bork’s confirmation would mean that “women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government. …”

America, according to Kennedy and those who vibrated to his bombast, was living on the lip of a volcano, with no secure civil rights. None that could withstand the ascendancy to the court of a man whose judicial philosophy resembled that of Justice Oliver Wendell Holmes, the progressives’ pinup who believed in vast judicial deference to majorities. So, Kennedy was asserting that an American majority was eager to extinguish American liberty.

Kennedy spoke just 288 days after he and 97 other senators voted 98-0 to confirm Antonin Scalia, Bork’s intellectual soulmate. Obviously the Bork episode was not about jurisprudence.

Four years after the Senate rejected Bork, it confirmed Clarence Thomas, 52-48, after weighing last-minute accusations of past sexual misbehavior — talk, not touching. The next two justices, Ruth Bader Ginsburg and Stephen Breyer, were confirmed with just three and nine opposing votes, respectively. Since then, however, the five justices confirmed (John Roberts, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch) have had between 22 and 45 votes against them.

All were eminently qualified, but none were more so than Merrick Garland, the shabby treatment of whom was supposedly justified by a terrible and profoundly anti-constitutional idea that fuels today’s conflagration. It is the idea that the selection of justices should be tethered to our never-ending political campaigns, so that the court will reflect voters shifting constitutional preferences.

Hence the confirmation process has followed the crumbling, descending path the rest of American politics has taken into the depths of cynicism, faux outrage and pandering to the parties’ hysterical bases. The utter emptiness of everything is an intellectual vacuum into which have flooded histrionics.

Next week, the Senate committee might try to discover some pertinent things — when and where the party occurred, whether it was unusual, whether all those present were minors. If the committee cannot make such determinations, assisted by Ford’s timely testimony, this will be instructive and probably dispositive. Her courage in exposing herself to examination and opprobrium has earned her a respectful hearing. However, her rejection of multiple hearing options and her insistence on prolongations that serve her party’s agenda have earned her quizzical scrutiny.

This debacle du jour dramatizes how the court’s stature is hostage to the degrading confirmation process, which has become a maelstrom of insincerities. The justices who emerge from it suffer subtractions from the dignity that gives their decisions momentum for respect. For 64 years, the infusion of prestige the court received from its desegregation rulings has been remarkably durable, despite decisions — e.g., Roe v. Wade and Bush v. Gore — that were made during, and that intensified, turbulence in public sentiment. But prestige is perishable, and senatorial ludicrousness can infect all who come into contact with it.

In recent decades, all civilian institutions important to national governance — Congress, the presidency, the parties, the bureaucracy, the media — have, by their ignorance and arrogance, earned the disdain that now engulfs them. Yet although the court regularly renders controversial decisions on matters about which the country is either deeply ambivalent (e.g., same-sex marriage) or hotly divided (e.g., abortion), its decisions are usually broadly accepted as ratifying norms that must be, and soon are, accepted.

The judiciary is (Alexander Hamilton, Federalist 78) “the least dangerous” branch because, having “no influence over either the sword or the purse,” it has “neither force nor will, but merely judgment.” Its judgments, however, can be uniquely powerful because they rely entirely on the moral authority of conscientious reasoning explained in writing. Next week, the committee’s senators, most of whom are fungible and easily replaceable, should try to minimize the damage their theatrics do to the government’s least damaged institution.

© 2018, Washington Post Writers Group

Who We Are

The Patriot Post is a highly acclaimed weekday digest of news analysis, policy and opinion written from the heartland — as opposed to the MSM’s ubiquitous Beltway echo chambers — for grassroots leaders nationwide. More

What We Offer

On the Web

We provide solid conservative perspective on the most important issues, including analysis, opinion columns, headline summaries, memes, cartoons and much more.

Via Email

Choose our full-length Digest or our quick-reading Snapshot for a summary of important news. We also offer Cartoons & Memes on Monday and Alexander’s column on Wednesday.

Our Mission

The Patriot Post is steadfast in our mission to extend the endowment of Liberty to the next generation by advocating for individual rights and responsibilities, supporting the restoration of constitutional limits on government and the judiciary, and promoting free enterprise, national defense and traditional American values. We are a rock-solid conservative touchstone for the expanding ranks of grassroots Americans Patriots from all walks of life. Our mission and operation budgets are not financed by any political or special interest groups, and to protect our editorial integrity, we accept no advertising. We are sustained solely by you. Please support The Patriot Fund today!


The Patriot Post and Patriot Foundation Trust, in keeping with our Military Mission of Service to our uniformed service members and veterans, are proud to support and promote the National Medal of Honor Heritage Center, the Congressional Medal of Honor Society, both the Honoring the Sacrifice and Warrior Freedom Service Dogs aiding wounded veterans, the National Veterans Entrepreneurship Program, the Folds of Honor outreach, and Officer Christian Fellowship, the Air University Foundation, and Naval War College Foundation, and the Naval Aviation Museum Foundation. "Greater love has no one than this, to lay down one's life for his friends." (John 15:13)

★ PUBLIUS ★

“Our cause is noble; it is the cause of mankind!” —George Washington

Please join us in prayer for our nation — that righteous leaders would rise and prevail and we would be united as Americans. Pray also for the protection of our Military Patriots, Veterans, First Responders, and their families. Please lift up your Patriot team and our mission to support and defend our Republic's Founding Principle of Liberty, that the fires of freedom would be ignited in the hearts and minds of our countrymen.

The Patriot Post is protected speech, as enumerated in the First Amendment and enforced by the Second Amendment of the Constitution of the United States of America, in accordance with the endowed and unalienable Rights of All Mankind.

Copyright © 2024 The Patriot Post. All Rights Reserved.

The Patriot Post does not support Internet Explorer. We recommend installing the latest version of Microsoft Edge, Mozilla Firefox, or Google Chrome.