There is one thing Democrats and Republicans can agree on: The Kavanaugh hearing was a despicable example of how low American politics has sunk. Neither party can be pleased with the process, and neither side is innocent in how the process has deteriorated.
GOP Sen. Ben Sasse touted the Republican mantra that the decline began in the 1980s with the Bork nomination. But that was far from the first failed nomination, and Bork, as you might recall, was involved in Nixon’s Saturday Night Massacre.
For most of our history, Supreme Court confirmation hearings were held only for controversial appointments. It did not become a regularity until after conservatives railed against Brown vs. Board of Education. Another reason for the circus sideshow the hearings now spawn is the changing of Senate rules by each party to gain advantages.
When Senate Minority Leader Mitch McConnell delayed most of President Obama’s lower-court appointments, Majority Leader Harry Reid lowered confirmation votes on such appointments to a simple majority. Once McConnell became majority leader, he refused to allow a hearing on Merrick Garland, thus leaving a 14-month vacancy. Then, determined the Democrats would not be allowed to use his tactics against his party’s nominees for the highest court, he changed the rules on Supreme Court nominations to require a simple majority vote.
Alexander Hamilton thought the court to be the “least dangerous” of the three branches. Its power is derived from a public that respects the court and is willing to abide by its decisions. The recent politicization of the court has resulted in a decline in the public’s respect. While still higher than that of Congress or the presidency, less than half of Americans polled trust it.
Chief Justice John Roberts has long feared a court perceived as divided along partisan lines. He said he fears the court “will lose its credibility and legitimacy as an institution.” His fears are well-grounded. But neither side of the aisle is guilty of wanting fair and impartial justices. The animus in these nominations is directly related to the Roe vs. Wade ruling, and the Citizens United ruling.
Let’s be bluntly honest: A court that is not respected can lead to a constitutional crisis. We have already witnessed numerous cases where local government officials have attempted to circumvent the high court’s rulings. Most of these have been in the form of getting around limiting restricted voting efforts.
I haven’t a clue as to how to change the political parties’ outlook. I do, however, offer some thoughts on how to return the confirmation process back to civility. First, and foremost, we need to return the Senate back to earlier rules and regulations. That will require Congress to reduce the power of party leadership back to its previous levels and give greater freedom and power to individual senators.
Then the Senate rules need to be returned to previous ones. A two-thirds confirmation vote can be abused, but it would require presidents to nominate more agreeable candidates. There is nothing wrong with denying a confirmation on legitimate grounds. The rejection of Robert Bork, for instance, led President Ronald Reagan to choose the Anthony Kennedy, a who became a frequent swing vote, rather than a partisan one.
I would also recommend setting a term limit, albeit a lengthy one, on justices. The average life expectancy today is nearly double what it was when the Constitution was written.
As for the current court, I suspect conservatives will be disappointed in many cases. I suspect that Justice Roberts will become like the Justice Roberts who became a swing vote during the FDR administration. Justice Owen J. Roberts, appointed by President Herbert Hoover in 1930, feared the public’s animosity toward the rigidity of the court, and that fear informed many of his votes.
Michael Adkins formerly was chair of the Hancock County Democratic Party.
Michael Adkins is the former chair of the Hancock County Democratic Party. He lives in Greenfield.
