Misrule of Law

A slightly-revised version of this article appeared in American Greatness on October 16, 2018.

When President Trump nominated Judge Neil Gorsuch for the U.S. Supreme Court last year, I predicted here that “The real fight will come later, if and when one of the liberal Justices (Ginsburg, for example), or the swing-voting Kennedy, departs the Court through death or retirement and creates another vacancy. At that point, when the ideological balance of the Court could tilt decisively rightward, the Democrats will really pull out the stops. In the meantime, consider the liberal opposition to Gorsuch a dress rehearsal for the ugly battle yet to come.”

Later in 2017, after Justice Gorsuch had been narrowly confirmed by a 54-45 vote, I warned American Greatness readers that “The recent Senate battle to confirm…Gorsuch, requiring elimination of the filibuster, will seem like a chorus of ‘Kumbaya’ when the pivotal seats now held by Justice Anthony Kennedy or Justice Ruth Bader Ginsburg become vacant.” Kennedy’s retirement triggered an even greater firestorm than I expected, the ferocity of which became evident when Senate Judiciary Committee Chairman Chuck Grassley (R-IA) was repeatedly interrupted by Democratic committee members while trying to open the confirmation of Judge Brett Kavanaugh.

The hearing would be a raucous circus. By the time Grassley finally got to make his opening statement on September 4, after an hour of frivolous objections by his disruptive colleagues across the aisle, his call for the Senate to atone for the unseemly rejection of Robert Bork 31 years earlier—quoting yours truly from the Wall Street Journal–fell on deaf ears:

As Mark Pulliam said in an op-ed over the weekend, “The borking of Robert Bork taught special-interest groups that they could demonize judicial nominees based solely on their worldview. Worse, character assassination proved an effective tactic, nearly sinking Justice Clarence Thomas’s appointment four years later.”

But he also said, “By confirming Judge Kavanaugh, the Senate can go some way toward atoning for its shameful treatment of Robert Bork 31 years ago.”

Appeals to conscience proved to be pointless, since the vicious Senate Democrats were on a mission to destroy Kavanaugh at any cost. The proceedings were already off the rails, and would continue in that vein until the final 50-48 confirmation vote on October 6.  Now that Justice Kavanaugh has been confirmed, sworn in, and seated on the Court, what have we learned? Here are some reflections.

In recent decades, the Left’s tactics in Supreme Court confirmations have escalated, even as they have generally missed the mark. In 1987 the Left unfairly vilified Bork, one of the most qualified people ever nominated to the Supreme Court, as an intemperate extremist, ultimately defeating him 58-42. Bork was replaced by the inconsistent Kennedy, who nevertheless voted with his conservative colleagues in some important cases (including District of Columbia v. Heller and Citizens United). Had Bork been confirmed instead, President Obama would have been able to replace him upon his death in 2012. Instead, Brett Kavanaugh filled the vacancy.

In 1991, Clarence Thomas was subjected to baseless allegations of sexual harassment charges in an unsuccessful campaign to defeat his nomination. He was confirmed—albeit closely—by a 52-48 vote.  In 2006, Judge Samuel Alito was threatened with a filibuster before ultimately being confirmed by a 58-42 vote. Both Thomas and Alito are resolute constitutionalists. Senate Democrats’ flirtation with filibusters when they were in the minority emboldened Senate Majority Leader Harry Reid to eliminate the filibuster for non-SCOTUS nominations in 2013, when Democrats controlled the Senate.

Reid’s improvident decision to exercise the “nuclear option” enabled his successor, Sen. Mitch McConnell, to abolish the filibuster for SCOTUS nominations as well, allowing the GOP-controlled Senate to confirm Judge Neil Gorsuch in 2017 by a narrow 54-45 vote. The spiteful behavior of Senate Democrats in the Kavanaugh hearings prompted President Trump to scrap the longstanding “blue slip” tradition of consulting with home state Senators before selecting judicial nominees. The Democrats’ meanspirited tactics have consistently backfired.

The Left’s disgraceful treatment of Judge Kavanaugh combined the Bork and Thomas attacks–impugning both his judicial philosophy and personal conduct—and then added a new element: disingenuous criticism of his “judicial temperament,” for having the temerity to defend his reputation with righteous indignation! Senate Democrats unflinchingly doubled down with despicable ruthlessness, and sought to smear Kavanaugh—without even a scintilla of credible support–with maniacal zeal.

The Senate, once regarded as the “world’s greatest deliberative body,” has become stridently partisan and shockingly dishonest. Sens. Kamala Harris and Cory “I am Spartacus” Booker used the Judiciary Committee hearing as an audition for the 2020 presidential campaigns, and even the normally-dignified Sen. Dianne Feinstein engaged in the political theater. There were interruptions, staged demonstrations, numerous arrests, leaks, dirty tricks, attempts to stall and delay, absurd histrionics, and brazen character assassination of a nominee who had undergone six FBI background checks, was a 12-year veteran of the D.C. Circuit, and had received a unanimous “well qualified” rating from the ABA—the ABA’s highest rating for High Court nominees.

Senate Democrats had an enthusiastic and uncritical audience on the Left, revealing the frightening potential of mob behavior. “Progressive” interest groups and the liberal media have become devoted allies of the Democratic Party, shamelessly making (and repeating) groundless charges without scruples. The “fake news” media lived up to their nickname, going  “all in” against Kavanaugh and abandoning all pretenses of journalistic ethics or impartiality. Kavanaugh’s confirmation hearing was a sordid spectacle, managing to further diminish already-low public respect for Congress and damaging the Supreme Court in the process.

What prompted this unsavory episode? Several related factors were at work: Trump Derangement Syndrome, which has gripped the Left since the 2016 election; the Court, and the legal culture generally, have become much more political since President Reagan nominated Bork in 1987 (with many controversial issues being decided by narrow majorities—sometimes 5 to 4—including gay rights, same-sex marriage, abortion rights, racial preferences, etc.);  and, most importantly, the seat at stake belonged to Justice Anthony Kennedy, who throughout his 30 years on the Court served as the “swing vote,” often joining the liberals on the Court to form a five-person majority in favor of liberal activist outcomes (following the role pioneered by Justice Sandra Day O’Connor).

Confirmation hearings have historically been less contentious when a conservative is replacing a conservative (e.g., Antonin Scalia replacing William Rehnquist as Associate Justice—confirmed unanimously; John Roberts replacing Rehnquist as Chief Justice in 2005—confirmed 78-22). Things are typically more contentious when a conservative is replacing a justice regarded as liberal, “moderate” or a “swing vote,” such as the seat vacated by Lewis Powell (Bork), Thurgood Marshall (Thomas), O’Connor (Alito), or Kennedy (Kavanaugh).

This (along with Senate Republicans’ playing by the longstanding rules) explains why various Democratic Presidents’ SCOTUS nominees in recent years were confirmed without significant opposition: Ruth Bader Ginsburg replacing Byron White in 1993 by a 96-3 vote; Stephen Breyer replacing Harry Blackmun in 1994 by an 87-9 vote; Elena Kagan replacing John Paul Stevens in 2010 by a 63-37 vote; and even Sonia Sotomayor replacing David Souter in 2009 by a 68-31 vote. All these examples were liberals replacing liberals.

Kavanaugh was different because not only was he a conservative replacing a swing vote, his confirmation would—and did—decisively tip the ideological balance on the Court in favor of a conservative judicial philosophy for decades to come. Accordingly, after an unprecedentedly  fierce battle, Kavanaugh was confirmed 50 to 48, largely along party lines (WV Senator Joe Manchin was the only Democrat to vote for confirmation, and Alaska Senator Lisa Murkowski voting “present” to balance the missing Sen. Steve Daines (R-MT)).

The ultimate reason Kavanaugh’s nomination was so acrimonious is that, as Robert Bork explained in his 1990 book The Tempting of America, over the past 50-60 years (beginning with the Warren Court in the 1960s), the Court has usurped policymaking and lawmaking from the other branches (and the states) through an increasingly ambitious application of the “living Constitution.” Since the middle of the 20^th century, the Court has been making the law, not honestly interpreting it. Bork and Scalia led the movement in favor of constitutional “originalism,” much to the consternation of the Left. When judges interpret the Constitution according to its plain text and original meaning, power is retained by the political branches and the state—We the People—not unelected judges.

Under the “living Constitution” approach favored by the Left, the Court became a political body—a nine-man super-legislature. A five-person majority could—and did—govern the nation. Over the past 50-60 years, the Court has delivered most of the Left’s policy objectives: inventing a variety of rights not appearing in the Constitution, at the expense of democratic self-government.  The Left realized that winning lawsuits is more reliable, faster, cheaper, and more enduring than the complicated business of winning elections throughout the country. Liberals have had control of the Court for decades. Understandably, the Left didn’t want that to end.

The Senate’s refusal to conduct a hearing or take a vote on Judge Merrick Garland in 2016 to replace Scalia was not the cause of the Democrats’ meltdown over Kavanaugh. Obama was a lame duck and 2016 was a presidential election year. The Republicans did not vilify or demonize Garland. They simply refused to consider Garland’s nomination, which is the Senate’s constitutional prerogative. The Democrats would have done the same thing if the positions were reversed, and in fact Sen. Joe Biden, then Chairman of the Senate Judiciary Committee, said so in the closing days of George H. W. Bush administration in 1992. The refusal to confirm Garland is a rhetorical fig leaf Democrats try to use to hide their shameless bad faith toward Kavanaugh.

For the first time in my lifetime, with Kavanaugh there will be a five-person conservative majority on the Court. Kavanaugh’s confirmation battle was all about preserving power. Not content simply to oppose Kavanaugh nomination through the confirmation vote, the Left’s smear campaign continues, seeking to de-legitimize Kavanaugh as a justice and to discredit the Court in anticipation of its retreat from flimsy precedents issued under the period of liberal rule.  The American people watched this sordid spectacle with horror, appalled by the Left’s mob behavior and Sen. Chuck Schumer’s soulless demagoguery. The Democrats’ tactics once again backfired, turning the tide in favor of Republicans in the upcoming mid-term elections.