Judge Kavanaugh, The Supreme Court and Robert Bork
In the past month, we have seen the Senate and particularly, the Senate Judiciary Committee turned into a circus of political posturing. From even before President Trump nominated Judge Kavanaugh to the Supreme Court vacancy left by retiring Justice Kennedy, Democrats were the party of “No!” Senator Schumer and many others had stated that they would not support President Trump and his nominee. Then, throughout the confirmation process, they tried to throw up more roadblocks. When the Senate Judiciary Committee convened to begin the proceedings with Judge Kavanaugh, many Senators on the committee, including Senator Booker, Senator Harris and Senator Blumenthal began a near filibuster of the proceedings with motions and attempts to stop the committee.
Last week, after last minute accusations were leaked to the press by Senate Democrats, for what even fellow Democrats said could have likely been for partisan means, the Senate Judiciary Committee reconvened to hear testimony from Dr. Christine Blasey Ford and Judge Kavanaugh on allegations of sexual assault. The highly partisan statements and questions from both sides of the aisle set a very charged and heated tone for the proceedings.
This begs the question, “Why has a nomination for the Supreme Court come to such dirty politics and rhetoric?” One could easily look at the most obvious aspects like the replacement of the “swing-vote Justice” for a much more Conservative one, or the unfounded potential for the reversal of Roe v. Wade. But these points don’t get to the heart of why we are in this position to begin with. Why are we at a point that the Supreme Court has become a political battle royale? To answer that, we have to go back decades and even centuries to the early days of the Supreme Court and what it was intended by our Founding Fathers to do.
For more information on what the powers of the Supreme Court are that have been granted by the U.S. Constitution, see my previous article on Political Storm.
Since the 1960’s, the Supreme Court has grown increasingly more powerful in scope. Their original purpose of a check to the Legislative branch has taken on a more activist role in the government. Many of the landmark Supreme Court cases are lauded today as great reforms to social justice, but those SCOTUS decisions slowly became the norm of the Supreme Court overstepping their original purpose. So much so, that in 2016, the Supreme Court not only struck down a bill from the Legislature (Defense of Marriage Act), they actually turned around and ipso facto made gay marriage fully legal in all states.
The courts have become all too powerful and the Supreme Court leads the way in that charge. We place great attention every 4 years to the election of the President of the United States because they can guide policy and decision-making for at least the next 4-8 years, but the SCOTUS justices serve a lifetime appointment and can have long-lasting impacts on the entire country, within only a few, unelected individuals.
The Supreme Court has exceeded that balance of power triangle you learned in 9th Grade Civics class (or should have learned) and has become much more powerful than the Legislature, and one could argue, at least equal in power with the President of the Executive branch. This is why the Democrats are so worried about Judge Kavanaugh, or any individual that President Trump appoints for that matter. They are worried that conservative values could be solidified in the court for decades if the court swings from a 4/4 split with a moderate swing vote (Kennedy) to a 5-4 split in favor of conservatives.
The Democrats will do everything in their power to stop any and all nominations to this all-powerful Supreme Court by President Trump and the tactics playing out before us now support that presupposition. The Democrats cried and cried for an FBI investigation into Judge Kavanaugh. They eventually got their way. But having their way wasn’t good enough. They want more now. They want an unfettered investigation with no constraints on time or scope. They want to delay the Senate vote as long as they can. Why? Maybe they want the Mueller report to be released and then try to say that Trump is an illegitimate President and should not be allowed to nominate for SCOTUS. Maybe they want to push it to the November elections and then hope they will a majority in the Senate and have all control over who they confirm to the SCOTUS. Maybe there is something else in the works.
When the Democrats came out against Judge Kavanaugh, they did so even before they knew his name. Many high ranking Democrats released statements or sound bites opposing President Trump’s nominee before the July 9th announcement. And the top Democrat in the Senate, Chuck Schumer, before he would have even had a chance to read a brief bio on Judge Kavanaugh, said that he was going to fight the Kavanaugh nomination “with everything I've got”. That’s telling.
Interestingly enough, there is an example of what the Democrats are doing that can been seen in the not too distant past. Does the name Robert Bork ring any bells? Robert Bork was nominated to the Supreme Court by President Reagan in 1987. Bork was an originalist, meaning he applied the original intent of the writers of the Constitution to his rulings as a judge and would therefore rule on the conservative side of the court. Kavanaugh holds similar points of view, further making him a target of the Democrats. In fact, in 1987, Senator Ted Kennedy took to the Senate floor to share his disapproval of Bork with these words:
> “Robert Bork's America is a land in which 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, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy ...
Sound familiar? In fact, many of these exact comments have been bullet points for every Democrat that opposes Judge Kavanaugh’s nomination. It is worth noting that Bork responded to Senator Kennedy’s remarks by saying, "There was not a line in that speech that was accurate." The damage was already done and Bork was never seated on the Bench.
This exact same scenario is playing out today and it’s ironic that it is for the exact same seat that Bork was nominated to… after Bork was rejected by the Senate in a 42-58 vote, the Senate later approved the appointment of Justice Anthony Kennedy to the Court. Fast forward 30 years later and retiring Justice Kennedy’s open seat is once again sitting in the proverbial flames.
Maybe Kavanaugh is innocent of all these allegations against him. Maybe he is guilty of it all. Maybe the truth lies somewhere in between. We will likely never know the full truth of who Kavanaugh was as a teenager, but the current FBI investigation that was cried out for will hopefully help fill in some of those gaps.
Aside: Ironically, these same Democrats calling for an FBI investigation into Dr. Ford’s allegations are the same ones that berated the FBI for not handling the Clinton investigation the way they wanted. It seems as if, you have to do everything the way they want, or they will never be happy. Tolerance at its finest.