Last Thursday the Senate Judiciary Committee heard testimony from Brett Kavanaugh and his accuser Christine Blasey Ford. Immediately after the hearing adjourned, Britt Hume commented on FOX News regarding the confirmation process. “This process is damaged. It’s been subject to this kind of thing for some years now. This is the most egregious example of it that I’ve ever seen.” Of course, Britt Hume was right.
The following day, S.E. Cupp speaking on CNN regarding the confirmation hearing and, more specifically, the evaluation of Kavanagh’s nomination said, “it comes down to us to decide as a society whom we believe and what the standards are.” Of course, S.E. Cupp was wrong. The Senate decides how to evaluate credibility and whether Kavanaugh will be confirmed. Society doesn’t, but maybe we should. Presidential nominations and Senate confirmation used to work well. Not anymore.
Because the confirmation process has become such a damaged, ugly spectacle, we now endure debate over the minutia of the Senate’s decision making process. What is the proper standard of proof when factual allegations are made against a nominee? Is it merely the standard an employer would use in a job interview? Or should a criminal proof standard be applied? What should be the focus of the FBI investigation? Who is empowered to direct and control the investigation? The nomination/confirmation process is no longer a good method for choosing Supreme Court justices for one primary reason, the elimination of which would solve the problem.
The responsibility for this problem doesn’t lie with the Constitution or those who drafted and ratified it. The responsibility lies with the Supreme Court itself, the other branches of government which have urged it to accept a much larger role than granted it by the Constitution, and all of us, the self-governing people who are ultimately fundamentally responsible to safeguard the Constitution and its separation of powers. As originally conceived, the Constitution delegated specific powers to the three branches of government. To the Congress, the power of making the law. To the President, the power of enforcing the law. To the courts, the power of settling disputes over the law – of determining what the law requires in any given circumstance or dispute.
The seeds for this crisis in the confirmation process were sown many decades ago when the Supreme Court expanded its role beyond its judicial function and began empowering the federal government by phony reinterpretations of the Constitution pursuant to the legal fraud that is living constitution theory. Living constitution theory is basically the notion that our Constitution should be read as an evolving document that magically changes with the perceived needs of society. It has now been taught in our public schools for generations and, as a result, is far too widely accepted as the basis for sound law. It is not sound law. It is a trick which enables five judges to disregard the real Constitution whenever they think their notion of good government or essential liberty requires the Constitution to say something it doesn’t really say or mean something that it never meant before. (For more on the fraud that is living constitution theory see my earlier articles, Our “Dying” Constitution and The Constitution Cannot Be Restored At The Ballot Box.)
Having taken for itself the power to reinterpret the Constitution as it sees fit, the Court has ruled that the Commerce Clause gives the federal government authority to exercise almost unlimited control over the entire economy. It has ruled that the Fourteenth Amendment, which was ratified in 1868 to guarantee blacks due process of law, suddenly now means that same sex marriage is a constitutionally protected right. It has proclaimed that Obamacare’s ‘individual mandate’ to purchase health insurance is a tax, not a penalty, in order to justify its holding that Affordable Care Act is constitutional. This, despite the President and every Congressional proponent assuring the public that the mandate is not a tax in order to gain public support.
Over the decades, living constitution theory has enabled, if not justified, the Supreme Court to make law every time it reinterprets the Constitution to require or authorize something other than what the Constitution actually provides. Because it effectively changes the Constitution by virtue of these false interpretations, it is now often rightfully viewed as a super legislature – a body made up of members who are appointed to lifetime positions, is answerable to no one, and by fiat simply makes up the most fundamental law of the land at the discretion of a majority of its members. It’s not surprising that the extraordinary and unconditional power now exercised by the Supreme Court has resulted in a desperate political desire to control its makeup.
It’s this desire to control the makeup of the Court which renders the confirmation process such a mess. The Constitution’s process for selecting new Supreme Court judges made perfect sense and worked quite well when Justices acted exclusively as judges. There was little reason for more direct, democratic processes to be involved. But now that the Supreme Court so often takes on the role of a super legislature, that same nomination/confirmation process not only leads to manipulations, discord, and acrimony, it also offends our common understanding of representative government. It’s one thing to have an elected President nominate judges and an elected Senate confirm them. It’s another thing altogether for a President to nominate and the Senate to confirm super legislators, thus removing the most powerful law making body from the direct election of the people.
Moreover, the nomination/confirmation process is ill-suited for the selection of super legislators. The Senate is a political body. Each member has an agenda outside of the mere selection of the best super legislator possible. They all jockey for political power vis-à-vis each other. They all have allegiances which impact their positions and perspectives. They’re all responsible to a constituency and are concerned with how their actions throughout the process might affect their next election. All of these political self-interests which are extraneous to the selection of the best super legislator provide the motivation for the political melodrama we see infiltrating and torturing the confirmation process as well as its participants.
Just as a voter doesn’t need hearings or an FBI investigation to inform his vote, senators don’t really need to be instructed as to the proper standard for assessing the credibility of a nominee. The Senate doesn’t need an investigation into the 36 year old claims of Dr. Ford any more than citizens of Alabama needed an FBI investigation into the decades old claims made against Roy Moore in his recent Senatorial run. But because the Senate is a political body, its members have myriad personal considerations not directly related to the confirmation process, and they therefore seek cover and justifications for their actions.
No individual voter would be affected by these extraneous personal political considerations. Consider our method for selecting members of Congress, our ‘other’ legislative body. There are Congressional elections every two years. The balance of power is always up for grabs in both houses. But we don’t see FBI investigations, live televised hearings, or even nationwide debates over the merits of any individual candidates because those processes are unnecessary and unhelpful for individual voters to reach a decision. All the issues as to credibility, evidence and the level of proof required to sway a vote are within the sole determination of the voter. Individual voters don’t need hearings, or instructions as to how they should evaluate a candidate’s credibility. Nor do we need FBI investigations into every claim made about a candidate’s past. The opposing campaigns and the media have historically done an adequate job of putting out for public consumption evidence, arguments and commentary addressing a candidate’s policy perspectives, experience, and character flaws.
Further, the spectacle is made all the greater by the national nature of a Supreme Court nomination. The largest Congressional districts are the States themselves as each state constitutes a district for the purposes of electing its Senators. Not so with nominees to the super legislature known as the Supreme Court. Each nominee to the Court affects each state and thus each citizen, equally. Your two Senators are your only representatives in the Senate, so their respective elections are the only Senate races with which you need to be directly concerned. However, every citizen in every state needs to be concerned about the makeup of our self-designated super legislature.
Much has been said of the underhandedness of the Democrat Party in soiling the judicial confirmation process. No one should be surprised. As I argued in an earlier article, The Corrupt Operating Principle Of Modern Liberalism, “because modern liberalism as reflected by the actions of its establishment flag bearers is entirely policy driven and has no regard for our constitutional rule of law, the democratic process, or the truth, it is bankrupt of any guiding principle other than expediency. Its approach to governance and the acquisition of power is ultimately tyrannical because it seeks to impose its policies and obtain the political power necessary to do so by whatever means possible…” It was entirely foreseeable that it would be Democrats who would breach the normal confirmation protocols in pursuit of a Supreme Court advantage.
From the nominations of Judge Robert Bork in 1987, to Justice Clarence Thomas in 1991 and now Judge Brett Kavanaugh, we’ve seen the most intensive, aggressive, and partisan fighting, in each case, instigated and led by Democrats. Though it’s difficult to define the Supreme Court in traditional political terms of left and right or liberal and conservative, Democrats and liberals want the Court populated by living constitution theorists who are willing to misinterpret the Constitution in order to give the government the fake authority to do the things Democrats and liberals want the government to do. FDR’s 1937 effort to pack the Court from 9 members to 15 in order to move his New Deal legislation forward bears remembering on this point. Conversely, conservative Republicans have preferred what might be called “original constitutionalists”, textualists and originalists who seek to understand and apply the Constitution in terms of its actual meaning as ratified by the people.
In the cases of, Bork, Thomas, and Kavanaugh, the nominee represented a move toward original constitutionalism. Bork was nominated to the seat vacated by Lewis Powell, generally considered a moderate and a swing vote on the Court. Thomas was nominated to the vacated seat of Thurgood Marshall, a staunch adherent to living constitution theory. Kavanaugh was nominated to the vacated seat of Anthony Kennedy, a moderate and, again, the long-time swing vote on the Court. Thus, all three of the nominations that have engendered extreme political histrionics in the confirmation process represented a decided shift in the Court’s makeup toward original constitutionalism and away from living constitution theory. Each nomination was virulently opposed by Democrats who sought to control the makeup of the Court, not because they feared the nominees were bad judges, but because they feared the nominees might halt or reverse the Supreme Court’s assumed role in lending its imprimatur to the illegal expansion of Federal Government authority via living constitution theory.
To be sure, the Democrat Party role in despoiling the confirmation process has been undeniable, self-interested, despicable, and malevolently motivated by a desire to circumvent the structural protections of individual liberty intended to be maintained through the constitutional separation of powers and the amendment process established in Article V of the Constitution. But the primary tool in constructing the temporal road to this point in history was living constitution theory which gave false justification for decades of Supreme Court usurpation of power from Congress and from the people. If the Supreme Court is to remain a super legislature, we need to acknowledge that the confirmation process is no way to select its members.
At bottom, the disordered havoc that is the nomination/confirmation process is symptomatic of a disease in our constitutional order. That disease is living constitution theory. If we would eradicate the disease, the symptoms would abate, and the nomination/confirmation process of seating judges, not super legislators, would once again work just fine.