If one backs off from the highly polarized and divisive battles
going on over this Supreme Court nomination, really nothing exceptional is
happening. Democratic presidents tend, naturally enough, to nominate more
liberal justices while Republicans tend, naturally, to nominate more
conservative justices. Republicans (nominally, if Trump can be considered a
Republican) hold the presidency at the moment, so of course more conservative justices
are going to be nominated. If Hillary had won no doubt the nominated justices
would have been more liberal. What is new here?
Justice Gorsuch, more or less a conservative, was nominated
by a Republican president to replace Justice Scalia, also a conservative nominated
by a Republican president (Reagan). Justice Kavanaugh, a conservative, has been
nominated by a Republican president to replace Justice Stevens, a moderate but a
bit on the conservative side, who was nominated by a Republican president
(Ford). Seems to me more or less what one would expect. No one was surprised
when Democratic president Obama nominated Justice Sotomayor
and Justice Kagen, both liberals, and in fact while some Republican Senators
grumbled a bit, none felt the need to do the sort of no-holds-barred down-and-dirty
street fight battle that has met Kavanaugh’s nomination. In fact Sotomayor was confirmed by a vote of 68-31 and Kagan by a vote of
63-37, with some Republicans joining their Democratic colleagues.
There has been much made of the fact that
the Republican-controlled Senate wouldn’t consider president Obama’s last
nomination of Merrick Garland just before the election, That maneuver is actually
called the “Biden rule” because it was (then) Democratic Senator Joseph Biden
who in a speech in 1992 first proposed the idea. Apparently it was OK for Democrats to use this
maneuver, just not for Republicans to use it.
Of course some liberals don’t want so-called “conservatives”
on the bench because they want the Supreme Court to be able to impose by legal
fiat policies they can’t get enacted through normal legislative channels. “Conservative” justices tend to rule based on
the wording of laws and the Constitution, and not to “creatively expand” the
meaning beyond what the wording implies on the basis of their own political or
cultural biases. And frankly I agree with that approach. Of course things have
changed since the Constitution was enacted, and so the laws must sometimes also
change. There is a perfectly good system already in place to make those
changes. For the Constitution, there is a process by which it can be amended,
as it has been already a number of times.
And Congress can also pass or amend laws as it sees fit.
The founders of this nation never intended the Supreme Court
to be a powerful force in government. It would have been anathema to them for a
few unelected judges with lifetime appointments to impose on the entire nation
by fiat laws or rules or cultural policies which were unable to get through the
normal legislative process. Yes, I can understand the frustration with the
dysfunctional Congress, but the solution is to fix Congress, not to bypass it
or replace it with nine unelected justices.
As it happens, I agree with most of the liberal goals, if
not always with their methods of achieving those goals. Permanent cultural
changes in attitudes and behaviors require convincing people (actually
talking and, more important, listening to those with other views), not
mandating their behavior with an all-powerful central government. We can go
live in China or Russia if that is what we want.
So despite the current hysteria in some quarters about this
nomination, I see nothing exceptional going on here, except for the unusually
vituperative behavior of some liberals.
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