October 3, 2018 by liebestropfchen
Supreme Court Justice Stephen Breyer once said, “Nobody wants a judge to be subject to the political whim of the moment.” He is correct in the intent of how a judge should be viewed, yet the stark political divide which has permeated our society for the past several decades has proven the opposite.
Unfortunately, most Americans do want a judge to be subject to the political whim of the moment. Or, at least most people think they do, with no critical thought or measure of the consequence such an impulse brings. Many suffer from the delusion that one’s own ambition for control over the political narrative can justify subjecting our judiciary to a litmus test of partisanship with which they agree.
For that reason, I fear for the future of our government.
The Supreme Court was established in our Constitution as a measure of federal oversight for grievances of state judiciaries which have difficulty resolving legal questions. The Judiciary branch was not meant as a replacement for the Executive and Legislative branches, but rather a co-equal branch which can provide a non-partisan protection for all citizens, irrespective of locale. While deference should always be granted to a state judiciary to fairly interpret state law, our Founders recognized the need for oversight when a state’s interpretation of laws may violate federal law.
As Aristotle once eloquently described law being “reason free from passion”, so was the Supreme Court intended to be a body of justices who could interpret the law free from personal or political fervor. Yet the Supreme Court has become a consistent battleground for Republicans and Democrats with aspirations to “stack the Court” with justices whom they expect will uphold or overturn key laws and prior decisions in order to feel a sense of entitlement and power in the political arena.
The judiciary has become nothing but a power struggle, which has severely compromised the value of our Founders’ desire to keep the judiciary unbiased. How can one interpret law fairly and justly while looking through a red or blue lens?
Justice rendered solely as a means to rule in partisan fashion is justice breached.
We should always be mindful that power is temporary. Leveraging biased politics as a means to reverse legislative decisions is only as politically expedient as the party who currently holds a majority power in other branches of government. Once power transitions to the opposing party, would one be happy with their sworn enemies following the same protocol?
The answer to that question is abundantly clear on social media. For liberals and conservatives, once “the others” are in charge of choosing justices, suddenly the reality of selecting a partisan court becomes too much to bear. However, the commonly held belief is that one needs to double down. Rather than seeing the game plan of “the others” as being identical to oneself, or that the answer should be to not have partisan justices, the course of action is to ensure one’s own party must regain control as soon as possible so more justices of the same party affiliation can be placed on the Court!
At what point will Americans realize this approach is a self-defeating prophesy?
Should our judiciary become increasingly partisan, then our laws become meaningless. The law is the law, regardless of what political party to which one prescribes. Interpretation of said laws, which is the job of the Supreme Court, should be viewed the same way.
Though the accusations against Supreme Court nominee Brett Kavanaugh are serious, I do not believe they are the reason Kavanaugh is unfit for the job to which he has been nominated. One need look no further than his record in Washington, D.C. to determine his political views. That, in itself, should be a deal-breaker – no one should be able to so easily identify the political views of a nominee to any court. Yet, I can understand if some want to overlook his time working in the White House under the Bush administration, or his work on the Kenneth Starr investigation into former President Clinton, in favor of more recent events.
That is unfortunately where history may begin to rhyme.
Kavanaugh’s statements in his confirmation hearings regarding the 2016 election outcome were clearly an attempt to connect the backlash of his nomination to leftist disappointment over the election of Donald Trump. Yet, there is no solid pretext for such a claim, given the specific allegations against Kavanaugh. An argument could be made that the process of how allegations were handled by the Senate Judiciary Committee were flawed. However, such a dispute would be disconnected from Kavanaugh’s claim of the general public being politically motivated to rectify the 2016 election outcome, given that the general public has no control over the Senate Judiciary review process.
Kavanaugh’s claims that sexual misconduct accusations were a re-litigation of the 2016 election have no basis in fact, only in speculation. As we glimpse into Kavanaugh’s interpretation of law, should a Supreme Court Justice be ruling based on speculation?
Such speculation showing up in Kavanaugh’s opening statement during the nomination hearings is very troubling….for President Trump. Given Kavanaugh’s suggestion that the Committee’s and the public’s discomfort toward his fitness for the Court was rooted in conspiracy with the Clintons, he has singlehandedly, under oath, linked his nomination with the current president’s electoral opponent. Therefore, should a case be brought before the Court related to crimes committed during that election, Kavanaugh has created a conflict of interest (unless he can show evidence that his biased statements during the nomination will not in any way hinder fair judgment, which would be impossible to do).
Thus, a Justice Kavanaugh, having been appointed to the highest court in our nation, and faced with clear precedent that a conflict of interest would be cause to recuse himself from ruling in such a case, will undoubtedly anger the president who appointed him. Given how many times President Trump has angrily stated about his attorney general, “If I had known [Jeff Sessions] would have recused himself, I never would have chosen him,” I believe the president would have a similar response to a recused Brett Kavanaugh.
I believe the consequential decision for America right now is no longer whether Judge Kavanaugh is qualified to sit on the Supreme Court – that ship sailed a long time ago. The new question is, will a Justice Kavanaugh become political ammunition for the president, should a 2016 presidential election case come before the Supreme Court, further challenging the (already damaged) separation of powers?
Perhaps we fail to appoint impartial justices. Perhaps we cannot agree on a nominee’s qualifications. Maybe, just maybe, we can avoid more public trauma and discord if the president knows right now whether his current nominee will later be an “utter disappointment” for a lifetime appointment on the Supreme Court, so Trump can choose someone else.