^ the nominee and the controversial President who nominated him

—- —- —-

Our nation is politically unready to handle a Supreme Court nomination, but that’s what we have. So what do we do about it ?

There WILL be hearings. There WILL be a vote. The likelihood is that Kavanaugh will be confirmed. There will also be political consequences, none of them helpful. Should the vote be put off ? I don’t see how that would do any less political damage. He has been nominated by a President whose performance is grievously suspect and whose very fitness for office looks well beyond the pale of acceptable. Mr. Trump has aroused the worst of our politics, a typhoon of anger and a backlash of outrage. In this climate even a fully Constitutional act — and a Supreme Court nomination is all of that — struggles for basic acceptance.

A nomination to the Supreme Court should not about politics. It wasn’t always this way. The only unavoidable political component is that presidents try to nominate someone who will judge Constitutional issues the way he or she would like. Other than  that,  politics should be left aside when confirmation is the question.

Unhappily, my view is at present not how nominations are treated. The Kavanaugh hearings will be long and loud, dominated by Senators grandstanding their partisan views of the Court, asking questions either to destroy the nominee or to pamper him. Few, if any, are the Senators who will actually try to assess Kavanugh’s suitability for confirmation; and even these Senators will only appear to assess, doing so because their constituents are about evenly. divided, and they, the Senators, hope not to be judged by. how they decide on the nomination.

Heroes there are none in this demeaning show of buncombe and blather.

I would like to offer you, my readers, an informed opinion of Judge Kavanugh’s suitability: but how many of you care ? How many of you want to assess him on the facts rather than his political effects ? Perhaps in a future column i will assess him. I’ve read several of his opinions in actual cases and read the facts of those cases besides. There is a story there. How many of you want to hear it ?

In Louis Brandeis’s time, 100 years ago, nominees rarely testified at the Senate. (John Marshall Harlan, Sr. was the first to do so, in 1877.) They did not campaign for the job. Their friends did that, and their opponents opposed. Qualifications and legal honor were the issues in Brandeis’s long confirmation battle. This battle was then a rarity. (Brandeis was Jewish, and while never said, that was the big big issue.)  Few nominees faced any kind of opposition. Nominations weren’t a big deal.  Nominees were confirmed as quickly as two days after nomination, most by unanimous vote.

All sorts of lawyers ended up on the High Court, from diverse work backgrounds. Not so today.

Much reform is needed if the High Court is to revert to at least approximating its original design: appointments for life in order to insulate the Justices from any kind of political input, much less retribution. I would suggest the following, knowing full well that my suggestions have scant chance of adoption in the current shape of Court nominations :

( 1 ) nominate people who have not spent their entire legal careers as judges. Choose electeds, corporate lawyers, union lawyers, public defenders, prosecutors, law school professors.

( 2 ) refrain from having nominees testify personally at hearings where they will be asked unanswerable questions, and questions improper to answer, whose purpose is to embarrass the nominee or worse

( 3 ) make it clear that the “advise and consent” clause of Article II, by which the Senate is given the power to confirm or reject Presidential nominees to office, includes the implied phrase “which consent shall not be unreasonably withheld,” so that the bad faith move made in 2016 by Senator McConnell — refusing to hold hearings on President Obama’s nominee — can never again happen.

( 4 ) establish a custom that, whatever the background of a nominee, the next nominee cannot be of the same. For example, Judge Kavanaugh is a Federal judge. Under my suggestion, the next nominee cannot be a Federal judge, or even not a judge at all. And let the next nominee after that be of a different background than the prior two.

( 5 ) look less to a nominee’s legal philosophy than to his or her record of innovation and ad hoc advocacy. I am skeptical of all legal philosophies, knowing, as Justice Holmes so well wrote, “the ;life of the law is not logic, it is experience.” The law is far better served by common sense than by ideological commitments. The Constitution was an experiment; nothing like it had ever been tried except at the municipal level. It should be treated as an experiment now : an attempt to provide rules for promoting the General Welfare. The Constitution’s precepts seemed to those who ratified it to work better than any alternatives. “Work better” does not mean work perfectly. We should not expect interpretations of the Constitution to rise to exactitude.

As I have written before, the most fateful decision made by the Framers was to have a written Constitution. Other nations have accepted an unwritten one. Unwritten constitutions are freer to be flexible, to meet exigencies. Written ones tend inevitably to a conservatism arising from being written more than from what the present disputes require. But a written Constitution is what we have. The last thing Justices should do is to add an extra layer of conservatism to the conservation arising from it being written.

Let these my suggestions and this my argument infuse the future of our actual Supreme Court nominations and purposes.

—- Mike Freedberg / Here and Sphere



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