On September 4–7, the United States Senate held hearings on the confirmation of Judge Brett Kavanaugh to the Supreme Court to replace outgoing Justice Anthony Kennedy. The hearings were more raucous than usual, with several delays and attempted delays by protesters and grandstanding politicians. Eleven observations on the hearings follow.
1. The entire spectacle was unnecessary. As per Article II, Section 2, Clause 2 of the United States Constitution and the Senate’s current procedural rules, confirming the appointment of a new Justice to the Supreme Court requires a simple majority vote in the Senate. The Republicans currently have 51 Senators, and several red-state Democrats face pressure to confirm Kavanaugh because they are up for re-election in November. The rest of the Senate Democrats are unlikely to break with their #Resist ethos, no matter what Kavanaugh may say or do. The hearings gave Kavanaugh a chance to hang himself, of which he did not avail himself, and had no reasonable chance of bringing more support on board. There was thus no practical purpose to the hearings, which therefore served only as a public spectacle for each side to status signal. Since the matter will be decided almost exactly along party lines anyway, it would have been more efficient to skip the hearings and just vote.
2. Sen. Chuck Grassley (R–IA) is inept at chairing a committee. Much of the first day of hearings consisted of various Senate Democrats, especially those with presidential ambitions for 2020, trying to disrupt or adjourn the hearings. Sens. Kamala Harris (D–CA), Richard Blumenthal (D–CT), Cory Booker (D–NJ), Dick Durbin (D–IL), and even ranking member Dianne Feinstein (D–CA) got in on the obstruction, delaying the formal beginning of the proceedings for more than 75 minutes. Sen. John Cornyn (R–TX) described the hearing as “mob rule,” to which Grassley took offense but not meaningful action. Meanwhile, protesters kept interrupting and were gradually removed instead of completely cleared from the gallery at once, which irritated Sen. Orrin Hatch (R–UT). A more competent chair quickly would have taken decisive countermeasures.
3. The Democratic Party leadership is in an impossible position. On September 5, thirteen leftist activist organizations sent a letter to Senate Minority Leader Chuck Schumer (D–NY) expressing their frustration with the inability of Democrats to stop Kavanaugh. They criticized him for not “lead[ing] [his] caucus in complete opposition to Trump’s attempted Supreme Court takeover” and for “help[ing] Majority Leader Mitch McConnell fast track 15 Trump judicial nominees.”
“That is not the leadership we need,” said the letter.
Other activists trended the hashtag #WTFchuck on Twitter and used a billboard truck to advertise it around Washington, D.C. Still others protested at Sen. Schumer’s office. Even so, the letter acknowledges that success is impossible unless two Republicans would vote no alongside every Democrat. They still expect “nothing less than all-out resistance to Trump’s dangerous agenda”, but there is no means to achieve victory because they lack the votes.
4. Impotent virtue signalling would be amusing if not so pathetic. Protesters yelled and disrupted the hearings, only to be physically removed by police. Other protesters showed up in costumes from The Handmaid’s Tale, as if to say that Kavanaugh would reduce women to serfdom. Senate Democrats tried several parliamentary measures, none of which were successful. Once these methods failed, activists tried to sway the vote of Sen. Susan Collins (R–ME) by sending her thousands of coat hangers (a reference to illicit abortion methods) and attempting to blackmail her with a large conditional donation to her next Democratic opponent if she should vote to confirm Kavanaugh. There is no low to which leftists will not stoop in order to get their way, no hyperbole too great for their sense of shame (or lack thereof).
5. The accusations against Zina Bash are both hilarious and sad. Bash, one of Kavanaugh’s former law clerks, was accused of making a white supremacist gesture in the form of an “OK” hand sign. Bash is half Hispanic and half Jewish; her grandparents are Holocaust survivors. A person of this background is about the last person who would promote a movement that opposes the presence of Hispanics and Jews in the United States. It is also worth noting that associating the “OK” hand sign with white power began as a 4chan trolling operation and has mostly remained such.
6. If one is going to grandstand, it should not be transparently phony. On September 6, Sen. Booker released “committee confidential” documents concerning Kavanaugh’s view on racial profiling. These documents are not classified, but are also not available to the general public. Booker claimed that “This is the closest I’ll ever get in my life to an ‘I am Spartacus’ moment,” Booker said, citing a line from the 1960 Academy Award-winning movie “Spartacus”. Not only is this a wild hyperbole, as no one reasonably expects a mass slaughter of Senate Democrats to mirror that of the historical slave revolt led by the real Spartacus, but the entire incident was staged.
“We cleared the documents last night shortly after Sen. Booker’s staff asked us to,” said attorney Bill Burck, a former colleague of Kavanaugh’s. “We were surprised to learn about Sen. Booker’s histrionics this morning because we had already told him he could use the documents publicly. In fact, we have said yes to every request made by the Senate Democrats to make documents public.”
Sen. Cornyn accused him of “conduct unbecoming a Senator,” saying, “Running for president is no excuse for violating the rules of the Senate or of confidentiality of the documents that we are privy to.”
7. Roe v. Wade is not in mortal danger, and it would not be the end of the world if it were. Much of the leftist activism against Kavanaugh focuses on the prospect of this decision being overturned. In the hearings, Kavanaugh referred to the case as a precedent, though he stopped short of calling it correct. There is a common misconception that if a future case were to push the federal right to an abortion back into the ether from whence it was pulled, abortion would suddenly be illegal everywhere in the United States. In truth, the decision would revert back to the state level, as it was before the 1973 ruling. The most conservative states would ban abortions, while nothing would change in the most liberal states. So-called purple states would become political battlegrounds over the issue, which would eventually reach a settlement that many people do not like, but feel they can live with because it was arrived at organically, not imposed by nine distant berobed figures unaccountable to them.
8. “Settled law” is a nonsensical idea. Laws are social constructs formed, altered, and repealed by men. The law itself cannot rule because it has no agency, no particular sentience of its own to operate in physical reality. A nation of laws and not of men is thus an impossibility. For Kavanaugh to refer to Roe v. Wade as “settled law” is both illogical and ahistorical. The Supreme Court has in some cases overturned its earlier rulings; the most famous example of this is Brown v. Board of Education (1954) undoing the pro-segregation ruling in Plessy v. Ferguson (1896). Constitutional amendments can also do this, as the Eleventh Amendment did to Chisholm v. Georgia (1793).
9. Stare decisis is a flawed idea. The translation from Latin is “stand by things decided”, and it refers to a legal doctrine of standing by precedent. Applied to particular cases, it produces the idea of “settled law”. In the realm of abstract logic, such reasoning is the fallacy of appeal to tradition. A legal precedent is not correct simply by virtue of its age or the number of corollary cases decided upon its benchmark. Applied consistently, it would produce a Court incapable of admitting that its current or former membership has made (or can make) mistakes, and nothing good can come of flawed humans claiming infallibility.
10. The leftist outrage over Kavanaugh is nothing compared to what will occur next time. Kavanaugh is set to replace Justice Kennedy, widely regarded as a moderate or swing vote. This will result in decisions which split along conservative/liberal lines being more reliably 5–4 conservative rather than a toss-up. But given the ages of the other justices, it is unlikely that this will be the last appointment to the Supreme Court made by Trump, especially in the likely event that he is re-elected in 2020. If Justice Ruth Bader Ginsburg and/or Justice Stephen Breyer should expire under Trump’s watch and a conservative judge is appointed to fill the vacancy, expect all-out war from leftist activists because this could result in a strongly conservative Court for decades.
11. The root of the unrest is that sovereignty lies in the judicial branch. The statement of sovereignty in the American system of government is not the Constitution or the Declaration of Independence, but an early Supreme Court case. In Marbury v. Madison (1803), the Court took for itself the power of judicial review, found nowhere in the Constitution. From that day to this, no one has had the good sense to correct this error, and it forms both the ultimate stare decisis and the root of judicial supremacy in America. While constitutional measures do exist to impeach Justices or enact amendments to overturn their rulings, these are so rarely used as to be practically worthless. That the Supreme Court can strike down laws as unconstitutional and interpret the Constitution to invent new “rights” stands in stark contrast to common-law tradition, in which judges cannot enact law, let alone function as an oligarchical over-legislature. If this power did not exist, then the current political battles over it would not exist a fortiori.