The political trauma of the confirmation process for Brett Kavanaugh’s
elevation to the U.S. supreme court tested not only the nominee, but
some very basic American principles as well as the character of several
men and women who now hold high office.
Some commentators are now discussing the winners and losers
resulting from this battleground, and there are no doubt some
political winners and losers in this matter.
I suggest, however, the greatest good to come from this event was a
reaffirmation of an essential American value --- the rule of law that
asserts a person is innocent until proven guilty.
The senate confirmation process was not designed to be a legal trial,
but in recent years, this constitutional function of “advice and consent”
has often been cast as a judicial proceeding --- and increasingly with
fewer and fewer of the rules and protections that our system
provides to every citizen. This is part of a general phenomenon that
in some quarters has arisen to question the very assumptions of our
representative democracy itself. Such self-questioning is cited in
our Declaration of Independence as a healthy process, but only when
it represents the considerations of all citizens --- especially in the task
that sometimes occurs in many nations, namely the overthrow of
After separating us from a despotic English king, the founders of the
new republic established an evolutionary and correctable written
constitution grounded with basic unalterable principles. Perhaps
paradoxically, many of our rules of law were inherited from English
law. Over time and through a tragic civil war the U.S. has repaired
many of its initial flaws that reflected not only public opinion in the
18th century, but also certain compromises our founders made to unite
thirteen disparate North American colonies into a functioning nation.
The constitutional creation of a supreme court did not enumerate
fully its powers, especially to overrule acts of the executive and
legislative branches. As the nation matured, the supreme court did
become the ultimate arbiter of constitutional government while
usually restraining itself from intervening on clearly expressed
powers granted to the other branches.
Over time, many circumstances and conditions change, and even
an institution such as the supreme court evolves in its public role.
In recent years, there arose a national controversy over the “activist”
supreme court (and lower courts) which has assumed its right to
“revise” certain founding ideas. This latest debate was
begun in the 1930s and has continued to the present day.
The current supreme court reflects a narrow majority of justices
who hold more “originalist” views than do the previous and
long-standing majority of activist justices. With the retirement of
Justice Anthony Kennedy, a conservative who on some social issues
sided with liberal colleagues, the stage was set for a full new
This was the context of the confirmation hearings of President
Donald Trump’s second nominee for the supreme court. That most
liberals and Democrats strongly oppose Brett Kavanaugh’s
legal philosophy, however, was not the question before the senate.
The decision about the ideological orientation of the judiciary is
decided in the presidential election. Only the president can nominate
a federal judge. The function of the senate “consent” to a nomination
is as a safeguard against a president failing to choose a judge of high
Lacking any credible grounds to oppose Judge Brett Kavanaugh’s
standing and ability in the law, his opponents decided to attack him
on his character and personal life. In order to pursue this strategy,
his opponents needed to promote a public relations atmosphere in
which Judge Kavanaugh would appear to be on trial in the senate
with allegations that presumed he was guilty --- a complete reversal
of a fundamental American principle.
The leaders of the senate, Majority Leader Mitch McConnell and
Judiciary Committee Chairman Chuck Grassley rose to the occasion.
They began their confirmation work as partisans, but because of
their opponents’ strategy, they ended the confirmation process as
constitutional champions as well. There were a number of high and
low moments as the process went on, but it was a speech by Maine
Senator Susan Collins, a moderate Republican, which best expressed
the largest and most critical issues. In fact, it was such a tour de force
that it is likely to be the one utterance in this matter which will be
read and quoted long after the present controversies are forgotten. It
was a moment of rare true political eloquence that ensures her place
in the history of the notable members of the U.S. senate.
In the wake of the confirmation vote, some commentators are arguing
the U.S. supreme court is now “politicized.” One wonders where
these commentators have lived for the past 40 years! The supreme
court has already been a political issue for most of that time. The
Kavanaugh confirmation was only latest chapter in this saga. Both
parties have responsible for "politicizing" the federal courts.
Beyond the political, however, this confirmation was the test of a key
threshold American principles --- the principles of the rule of law and
Considering the techniques now employed to bypass that threshold,
however, all of us --- liberals and conservative --- will need to
perform “sleepless vigilance” (Lincoln’s timeless phrase) to protect
our most essential principles from wherever threats to them might
Copyright (c) 2018 by Barry Casselman. All rights reserved.