Saturday, July 14, 2018

Constitutional Education Opportunity – Kavanaugh Confirmation

The impending confirmation hearings for Brett Kavanaugh’s nomination to the U.S. Supreme Court promise once again to be an education bonanza for the American people – as long as Senators do not muck it up with too much partisan bickering.

The Supreme Court history can be broken down, according to Cass R. Sunstein’s “Unanimity and Disagreement on the Supreme Court” into two periods: 1800-1941 and 1941 to present.  The earlier period was one of great harmony with a very high rate of unanimous decisions and almost no dissenting opinions.  After 1941 there was a major shift to a Court that was less based on consensus and more like “nine separate law offices.”  Consenting opinions, dissents, and 5-4 decisions were far more common.

Sunstein attributes much of this change and the level of harmony and consensus to the occupant of the Chief Justice seat.  Harlan Fisk Stone held that position in 1941 and brought about the present contentious era.

But the Court is not as divided as one might think.   Politicians and the media focus on the split decisions; however, over half of the Court’s decisions are unanimous.  In recent years as much as 63% were unanimous.  Split (e.g. 5-4) decisions tend to be less than 20 percent in any given year.

So, there is a significant thread of consensus within the Court even in these contentious times.   Those unanimous decisions result from Justices applying clearly stated law and jurisprudence to highly technical questions.

Chief Justice Roberts is a consensus builder and tries to keep the institution of the Court out of harms way by narrowing the issues and decisions and avoiding broad strokes in decisions.   This is helpful to maintaining the integrity of the Court, but it too can go too far.  Dissenting opinions of a minority or a consensus opinion one day can form the basis of a major direction change of the court in the future.  Diversity of opinion is valuable.

Another major event in the history of the Court occurred during the confirmation hearings of Judge Robert Bork in the 1980s.  Ronald Reagan’s nomination of Bork was rejected by the Senate.

Bork’s defeat was largely a partisan affair in the Senate with Senators Edward Kennedy and Joseph Biden leading the assault on Bork from the left.   They and their allies portrayed Bork as anathema to all of the social and cultural policy issues they cherished.  He was a threat to what they held dear.  But not, as many framed it, because of political ideology and evil intent.  Bork, was driven by, and a threat to the left based on his “Originalist” legal philosophy.

Bork opposed judicial activism and said, “The judge must stick close to the text and the history [of the Constitution], and their fair implications, and not construct new rights.”

The left pursued a scorched Earth policy to defeat him.  Even his video rental history was leaked.

Judiciary Committee Chair Joe Biden by the end of the hearings rejected some of the more radical attacks against Bork.  His view was that the Constitution provides rights to liberty and privacy not described in the text, and that strong originalist philosophy was incompatible with that view.

The Bork nomination began the inquiry of judicial temperament and philosophy in nomination hearings that until that point were not considered.  Before Bork the legal qualifications of the candidate were the only consideration.
There are similarities between the Bork nomination and Kavanaugh’s.  Both were Appeals Court judges with extensive opinions on file.  Both wrote academic papers. Both served in other non-judicial government positions with extensive and controversial paper trails.   Both created a fire storm of liberal outrage, anger, and opposition with political statements from within the U.S. Senate to stop the nomination at all costs.

Much is also different.  The Senate is controlled by Republicans.   Mitch McConnel and Chuck Grassley will control the gavel that Joe Biden and Ted Kennedy controlled in the Bork hearings.  Lessons were learned from the Bork process.  Most of all, Kavanaugh is a much different personality (Bork was tough to take, even for conservatives) and he is not an originalist in the mold of Bork, or even Justices Thomas and Gorsuch.  Some suggest he is more focused on constitutional structure to maintain the boundaries of each branch’s power.

Each of the present justices have a judicial philosophy that is interesting and important to understand.  Justice Ginsburg is considered an incremental activist while Justice Sotomayor could be considered a radical change agent on social issues.  Justices Breyer and Kagan and Chief Justice Roberts described by some as pragmatists.

A Justice Kavanaugh is likely to fall somewhere between the pragmatists and the originalists.

Questioning on his philosophy is appropriate.  It might even be a basis for a decision to deny his nomination by a senator, such as Biden did with Bork.   But to place too much emphasis on philosophy could potentially ensure that no nominee is ever again confirmed by the Senate. The Senate should tread lightly here.
The confirmation hearings for Brett Kavanaugh are a rich opportunity to explore these philosophical differences and educate the American public.   One hopes that the hearings will be used for that purpose rather than to attack the nominee.
According to Tom Goldstein, creator of the SCOTUSblog, “The upshot [of Bork’s treatment] is that we have this ridiculous system now where nominees shut up and don't say anything that might signal what they really think."

One hopes that the questions and answers during the hearing will be an education that captures the interest and attention of the American people.  The dreadful alternative is partisan bickering and a silent nominee.

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