The demoralizing story of Brett Kavanaugh’s Supreme Court confirmation process really began when political parties started selecting nominees for their opinions rather than their judgment. In our time, it probably started when President Reagan first broke tradition by imposing a “litmus test” he personally applied in interviews with judicial candidates by asking how they would vote on key issues. Since then, nominations have grown increasingly and more overtly partisan until current times when judges’ rulings can be predicted with embarrassing accuracy based on the Party of the president who nominated them.
This corruption of the Constitutional role of the courts, the “independent” third branch of government designed to mitigate the political passions of the other two branches, is both reflecting and contributing to a dangerous breakdown in trust in our institutions of self governance. Dangerous because, as I keep asking, if we can’t rule ourselves, who will rule us?
Having lived through a bloody revolution, our nation’s founders were realists about power. They did their best to design checks and balances to inhibit the powerful inclinations of leaders to dominate. But even the best systems are still operated by people, and essential to the maintenance of a government by, for, and of the people is a commitment by citizens and leaders alike to adhere to those constitutional checks. Indeed, one of the highest forms of patriotism might well be the willingness of the strong to share power for the benefit of a whole nation.
The process of nominating and confirming judges should be sacred to American democracy. Instead, the politics of judicial appointments is devolving into an exercise of raw political power with a goal of building even more power. Abandoning the filibuster allowed Brett Kavanaugh’s nomination to bypass all consideration of the interests or concerns of the other Party and the citizens they represent. Forcing this highly partisan candidate on a very divided nation, no matter how the final vote comes out, has been damaging to the country and nearly everyone involved.
It doesn’t have to be this way. There are ample candidates from the Left and Right who, like Merrick Garland, are almost universally respected for their temperament, balanced judgment, and wisdom. It stands to reason that nominees drawn from bi-partisan recommendations, like the public independent panels created by President Carter, for example, are far more likely to produce widely trusted, independent judges and justices than nominees drawn exclusively from lists created by the conservative, privately funded, and highly partisan Federalist Society—as Judge Kavanaugh was.
Whether and how we can get from our current depths of anger, polarization, cynicism, and despair to a rejuvenation of trust and fidelity to processes that respect a whole citizenry remains to be seen. Insisting on a politically independent judiciary is an important step.