Can the Supreme Court Recover? Can the Senate?

The 21stCentury has not been good for the Court or the Congress. That is a loss for all.

The Kavanaugh hearings are concluded., We do not know yet what will come from them. But I do know how they were conducted. It was a worrisome event. I say this not from the perspective of the worthiness of this particular candidate. For the record, it is my view that he is unworthy, but that is not the topic of the day. Reasonable people can disagree on that. But from a perspective of process and institutional strength, this was a bad week for the USA.

Some decried the fight put up by some senators and public displays of resistance. One noted that he had not seen such a display before. What, he asked, have we come to as a country? Someone pointed out that he was correct. Merrick Garland’s hearing was completely silent.

First, process. The Republican leadership wanted their guy seated when the new term starts in OCT. After all, President Trump might need some help any day now. To accomplish this, they made a mockery of the Senate’s constitutional role. This diminishes even further the standing of the Congress in public opinion. One wonders how that is possible; we must be approaching negative numbers for Congress by now. This is a congress that has rolled over and played dead in their constitutional duties. Consider the following:

  • The National Archives has advised they can get the documents requested, but it would take a few weeks. Never mind, we just will not look at any of them.
  • The White House arbitrarily refused to turn over about 100,000 pages to the committee. They did not claim executive privilege; they just exercised it. Never mind, said the committee chairman.
  •  What was deemed releasable and what would be classified so as to avoid public scrutiny was determined by a lawyer not even in government service. He represents defendants in the Russia probe. Senator Cory Booker called BS on the process and released several documents. He dared the Republican leadership to call him on it. His Democratic colleagues joined him. Good on them. If you abuse senatorial privilege to keep embarrassments secret, expect to called out.

  • Oh, some data was released. Over 40,000 pages – at 5:30 PM the night before the hearings. Chairman Grassley helpfully noted that his staff had reviewed it all in a couple of hours. He was sure everyone else could do the same. Sure….

Second, institutional strength. Both the Congress and the Supreme Court were badly hurt in this process. By any measure of due diligence and professional standards, these hearings were a mockery. Whether you think Kavanaugh should be on the court is not the point. No one, and I mean no one, should find this kind of open chicanery acceptable. If the Democrats tried this, I would be among the first crying foul. We deserve better than this.

What makes the country governable is a reasonable level of confidence by the people that the system works. That the system is at least marginally fair and accountable. That is an ever-tougher proposition to sell. When a party invests heavily over the long term in voter suppression, people begin to doubt elections.

When the same party kills legislation to safeguard those elections, the effect increases. When the Senate tolerates hearings like these, it is difficult to have confidence in the institution. We need not even mention the White House – a growing majority of citizens gave up on that one some time ago.

The Supreme Court has a special role in our governance and a special place in our history. It is not a uniformly good history by any measure. Still, oftentimes it has done the right things for the country. The power of being the final arbiter depends on citizen confidence.

In modern times, I thought its most dangerous moment was when the Court decided to rule on Gore vs Bush before the process had run its course in Florida. I remember thinking that whatever they did, they must not do it in a 5-4 decision. I would rather have had a decision I disagreed with decided 7-2 than one I liked at 5-4. The credibility of the institution was at stake.

Of course, 5-4 is exactly what they did, and the fissures in the country were solidified. Along with those fissures came the view of a Court that was much more political and ideological than judicial. I have a short list of what I think are the Court’s worst decisions in my lifetime. This one is right up at the top.

We are at another such key point now. If Judge Kavanaugh is seated, in spite of the deficiencies of the process, and in spite of what the released emails tell us about his veracity, I do not think the Court will recover its standing in our life-time. It will be seen mostly as a reactionary adjunct to the more extreme wing of the Republican party. Not a conservative court, but a deeply politicized and ideological court. It will be well down the path towards the same standing with the citizenry that the Congress now carries.

You give enough people good reason not to believe in their institutions long enough, and they take you at your word.

    Bill Clontz

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