Supreme Court Confirmation Consequences

October 19, 2018

Since the confirmation of Supreme Court Justice Brett Kavanaugh, many on the left of the political spectrum have been disseminating the idea that the legitimacy of the Supreme Court is now tarnished. They point to the sexual assault allegations, former Justice Stevens’ disapproval and the fact that a majority of the American public does not support Kavanaugh. Former Attorney General Eric Holder, no doubt wanting to excite the Democratic base in hopes of a 2020 Presidential campaign, released a statement saying that “The legitimacy of the Supreme Court can justifiably be questioned” and “The Court must now prove — through its work — that it is worthy of the nation’s trust.” It is surprising to me that he could so quickly forget his civics in the face of political aspiration; it is not the job of the Supreme Court to appeal to the voters or prove their legitimacy. It is their job to defend the text of the Constitution and the civil liberties of the American people. Irregardless of political leanings, opinions on the credibility of allegations against him or his temperament, there can be no doubt that Justice Kavanaugh is highly educated and has a long record of competent service on the D.C. Circuit Court of Appeals. While certainly not redeeming his character, his lengthy judicial record should be enough to temper concerns about how his confirmation will affect judicial instability.

 

Additionally, there can be no question that the Supreme Court confirmation process has become more ideologically divided, but the blame for this must be laid at the feet of the Democratic party. Beginning in 1987 with the nomination of Robert Bork by Ronald Reagan, the Democratic party has repeatedly split the confirmation process along party lines. The baseless allegations that Ted Kennedy and Joe Biden leveled against Bork of wanting to create “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, and 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” are the new light that Democrats seek to portray even the most moderate conservative nominee in. Even before any allegations surfaced against Kavanaugh, nearly every mainstream Democrat had come out against him as being dangerous to women, claims which were completely unfounded. The reality is that, even if the unlikely occurs and Roe v Wade is repealed, the issue of abortions would be kicked back to the states and people in liberal areas would be under no risk of losing their reproductive rights.

 

 PHOTO COURTESY OF FINE ARTS AMERICA

 

On the other hand, Republicans have been relatively bipartisan. While Donald Trump’s recent nominee Neil Gorsuch was undoubtedly highly qualified and uncontroversial, he was confirmed by a 54-45 vote, with only three red state Democrats voting with the Republicans. By comparison, Democratic nominees Elena Kagan and Sonia Sotomayor were confirmed 63–37 and 68-31 respectively, receiving support from Republicans despite the fact that they were known to be liberal leaning. The same Democrats who abolished the judicial filibuster for President Obama’s federal court nominees feigned outrage when Republicans did the same for Republican Supreme Court nominees. The takeaway should be that elections and actions both have consequences that Democrats seem unwilling to accept. They set the precedent for partisan confirmation hearings, and are now surprised that Republicans are using their own tactics to push through nominees.

 

Norms like the Ginsburg standard, where nominees do not discuss any cases currently being litigated, are harmful in ascertaining the insight of judicial nominees. The egregious handling of Bork’s confirmation has made nominees hesitant to discuss anything controversial or divisive. In the future, there needs to be a consensus among the parties to evaluate nominees based on their qualifications, with less of an emphasis on personal political views. Rather than suggesting extreme solutions like packing the court or launching mass investigations into Kavanaugh, those on the left should realize that the same tactics they used in the past are now coming back to bite them, and if they resort to those extremes after the midterms there is nothing to stop the Republicans from doing the same down the line.

 

Ryan is a sophomore Political Science major.

 

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