How about this New Year’s resolution for Congress: find a better way to appoint Supreme Court justices.
The spectacle of Justice Brett Kavanaugh’s confirmation hearings — character assassination largely motivated by his fairly conservative approach to the Constitution — illustrates that Congress has made the process toxic. And it has lost sight of what the court does, what the Congress is supposed to do and why.
Most cases before the court are not great constitutional issuesbut rather tough disagreements about the interpretations of federal statutes and conflicts among the federal circuits and state courts on a wide range of civil, criminal and corporate issues.
Most are beyond the competency of practicing attorneys, because they tend to specialize in areas like real estate, finance, patents and others.
To deal with the broad range of issues, justices should be selected from among generalists who sit on the appellate courts and outstanding scholars with robust experience. Individuals who demonstrate an unusual capacity for variety and the insight to craft durable, though not eternal, decisions.
In recent decades, presidents have shifted remarkably well in that direction — Brett Kavanaugh and Elena Kagan offer examples from the conservative and liberal camps.
When President Dwight Eisenhower appointed Earl Warren as chief justice, the court was genuinely political. He was governor of California with no judicial experience and joined three former senators and two justices who served as attorney general for the presidents who appointed them.
These days, the justices are outstanding legal scholars with a passion for fairness — but what is fair?
Those ethical and moral judgments should be made by the political branches, but since the establishment of the republic, members of Congress and presidents have been at war among themselves about states’ rights, race and civil rights. All reflect deep divisions among Americans drawn across regional, ethnic and class lines.
The court settles issues Congress fails to resolve and conflicts among federal circuit decisions and state laws addressing these issues that impose unworkable contradictions on individuals and businesses.
Generally, it does this well, but sometimes it fails badly. Plessy v. Ferguson(1896), upheld racial segregation, and Dred Scott(1857) limited federal latitude to prohibit slavery and protect the civil rights of free blacks in Northern states and territories — ultimately the 13th and 15th amendments undid the latter.
Liberals who lean so heavily on stare decisis regarding Roe (1973) and Planned Parenthood v. Casey (1992) ought to remember under that doctrine Brown v. Board of Education(1954) should not have happened and schools in the South would still be segregated.
Great issues like abortion, gay marriage and the latitude of regulatory agencies to implement vague statutes, where Congress has abrogated responsibility, are why we fight over who gets on the court — not judicial competence.
It was laughablewhen Sen. Mazie Hirono said that Dr. Christine Blasey Ford’s charges must be trueeffectively because Kavanaugh embraces conservative legal views, and Sen. Kamala Harris accepted that a mere accusation of sexual misconduct was enough to disqualify, because both are trained attorneys.
These days, presidents don’t send up unqualified scholars, and Supreme Court confirmations are political campaigns — so anything goes, including character assassination.
The Democrats and especially strident liberals view losing elections as the papacy would church burnings. Liberals are holy and conservatives are evil — the latter’s beliefs should be classified among the heresies of the vilest personalities.
Consequently, Democrats have behaved as if Donald Trump’s election was illegitimate and his Supreme Court appointees as fair target for the most false and destructive attacks.1 comment on this story
Recognizing the inherently political role of the court, and some politicians no longer feel bound in their conduct when their side loses elections, the best we can do is assign each political party an equal number of appointments. The president could alternate between consulting with the Democratic and Republican members of the Judiciary Committee much like the possession arrow in college basketball.
We simply can’t expect decent men and women to accept nominations or our republic to survive if the cynical tactics we witnessedduring the Kavanaugh hearings are to keep occurring. The last time passions were this high, the Civil War resulted.