After posting last night’s entry, I saw that in yesterday’s Wall Street Journal, William Galston made a passing reference in his column to the possibility that Democrats might seek, as “FDR tried,” to expand the number of Supreme Court Justices to counteract the effect of conservative Justices.  While I am an admirer of Mr. Galston, I hadn’t seen his column when I entered the last post  🙂 .

If one intends to review this post, but has not yet Part I (which is immediately below), I would start there  🙂.

8.  A number of pundits have intoned over the last weeks that Justice Kavanaugh will have a “major impact” on American jurisprudence for “the next 30 or 40 years.” I’m not so sure.  The nominee’s baldly partisan performance, as noted in Part I of this post, has cast the Supreme Court as merely another partisan institution of government.  Every American should hope that this impression – and any reality underpinning it – are quickly dispelled.  However, I offer a couple of unintended consequences that might result from the current tarnish upon the Court’s nonpartisan image:

The first, in the near term, is Chief Justice Roberts’ reaction. As many are aware, Supreme Courts of various periods are identified by the names of their Chief Justices:  the “Warren Court,” the “Rehnquist Court,” etc.  I would offer that the history of the Court shows that renowned Chiefs have sometimes been more focused on the reputation of their Courts than they were the outcome of any particular case.  If, as seems likely, the Chief Justice doesn’t want the legacy of his Court to be one of rank partisanship, I’m wondering whether he might not become a swing vote – i.e., that to regain an impartial image for the Court, he might support liberal positions on some matters (such as abortion cases) rather than follow what might be his natural inclination.  Conceding that this suggestion is pure speculation, I do offer one point in its support:  his providing the fifth vote (with the four liberals) to uphold the substance of the Affordable Care Act – on a rationale neither seemingly at the core of the parties’ legal arguments nor aligned with the reasoning espoused by the liberals.  One might suppose that the Chief Justice didn’t want his Court striking down the signature legislation of a duly-elected President and Congress, and crafted a legal argument to effect that result.

There is a second consequence that might arise in the longer term from any enduring popular impression that the Court is politicized: a liberal recasting of the structure of the Court.  The Constitution does not specify the number of Supreme Court Justices.  Congress sets the number.  The number of Supreme Court Justices set by Congress ranged from six to ten during the nation’s first 80 years; the current arrangement of nine Justices was set at nine pursuant to the 1869 Circuit Judges Act.

I suggest that demographics may not abide conservative rulings by the Supreme Court over the length of Judge Kavanaugh’s projected term.  Every day, our voting population has more now-young and now-minority people inclined to view cultural issues – be they gender, race, religion, or other — as Democrats do, and fewer people that view those issues as Republicans – and Justice Kavanaugh – do.  A study released in April by the admittedly-liberal Center for American Progress projects that by 2036, 40% or more of eligible voters in as many as 14 states – including Trump-won states Georgia, Texas, Arizona, Alaska, Florida, Mississippi, and Louisiana – will be non-white.  In a polarized society in which a growing majority of citizens could feel that their views and rights are being thwarted by what they perceive to be partisan conservative judges, it seems not only possible but perhaps predictable that a Democratic President and a Democratic Congress will simply pass a statute expanding the number of seats on the Supreme Court, and thereafter nominate and confirm liberal judges to those posts so as to neutralize the votes of Justice Kavanaugh and any other surviving conservatives.

As virtually all of us recall from our early schooling, what I’m suggesting could occur was proposed by Franklin Roosevelt in the 1930’s, due to his frustration with the Supreme Court’s early vitiation of New Deal laws.  The proposal ended with the most stinging political defeat of FDR’s presidency.  Even the President’s fervent supporters were outraged that he was attempting to tamper with another branch of government.  I would suggest that the reaction might be different within the next 20 years if a popular impression of the Supreme Court as a partisan institution takes hold.  Roosevelt’s proposal met with widespread castigation because in those days – whether correctly or not – the Supreme Court was viewed by the populace as above the fray, indeed, sacrosanct; unless the damage done to the Court’s image by Judge Kavanaugh’s performance is rectified, it doesn’t strike me as that long a reach to suppose that a majority of citizens might within the next score of years come to favor a law that they believe is needed to provide them justice.

9.  Finally, we come to James Bond, and his projection as to which party will be helped in the midterms by the outcome of the Kavanaugh battle. Over the last few days, commentators have pontificated at length as to which party will be more inspired by the result of the struggle – the Republicans by their victory, or the Democrats by their defeat.  While I might feel otherwise if the mid-terms were to be held this Tuesday, I submit that ardor is cooled by victory, and inflamed by defeat.  I believe that the fictional 007 would feel the same.  In Moonraker, after relating Bond’s victory at cards over Hugo Drax in the seemingly harmless early contest between the British Secret Agent and the villain that formed the opening vignette of every classic Bond novel, Ian Fleming wrote:

 

“Before [Bond] slept [that night] he reflected, as he had often reflected in other moments of triumph … that the gain to the winner is, in some odd way, always less than the loss to the loser…”

Given Justice Kavanaugh’s confirmation, and as we turn to consideration of other issues facing us, a few thoughts linger:

1. Judge Kavanaugh’s unseemly partisan performance during his second appearance before the Senate Judiciary Committee ripped away any remaining façade of high-minded impartiality attributed to the Supreme Court by the general public.  Judge Kavanaugh’s legacy, perhaps more than any vote he will cast during his tenure, may be the stain he has cast upon the image of the Court.  More on the potential ramifications of this in Part II.

 

2. A liberal talking head recently made a point with which I entirely agree:  faced with the choice of getting conservative judges seated on the Supreme Court, or maintaining Senate comity, Republican Senate Majority Leader Mitch McConnell opted to force through judges of his stripe without regard to the damage it would do to the fabric of the Senate.  I would add:  Sen. McConnell may hold an august office, while I’m just a Midwest retiree, but somehow it is he who has forgotten that the accommodation of competing views is what has made our form of government work.  His Senate leadership has been a gross disservice to our nation.

 

3. While some Senators apparently believed Judge Kavanaugh and others apparently believed Dr. Ford, it’s hard to accept that every Republican believed Judge Kavanaugh, or that virtually every Democrat believed Dr. Ford.  Any Senators of either party that voted party lines despite their own respective inclinations are unworthy of the offices they hold.

 

4. A few Senators, in my view, deserve praise: Sens. Heidi Heitkamp, Joe Donnelly, and Lisa Murkowski for not supporting the Kavanaugh nomination, although it was probably in their respective best political interests to do so, and Sen. Jeff Flake, for insisting that an FBI investigation be undertaken before the confirmation vote (the right thing to do, which I submit that citizens of all political persuasions should applaud although the outcome ultimately redounded to Judge Kavanaugh’s benefit).

 

5. A few Senators, in my view, deserve severe criticism: in addition to Sen. McConnell, Sen. Joe Manchin was clearly a Profile in Cowardice – not declaring how he would vote until he saw how the political clouds were parting … and, obviously, Sen. Lindsey Graham.  Sen. Graham’s tawdry rant at the Judiciary Committee’s Ford – Kavanaugh hearing makes clear that he should immediately demand that Sen. John McCain’s remains be exhumed; it’s clear that Sen. Graham’s sense of decency and backbone were accidentally buried with his late friend.

 

6. Although I had thought that President Trump no longer had the ability to disappoint me, I was — of course — wrong.  Earlier this week, he indicated that the campaign against Judge Kavanaugh “was based on lies and deception,” that Judge Kavanaugh faced … “[f]alse charges, false accusations, horrible statements that were totally untrue,” and that the opposition to Judge Kavanaugh “… was a disgraceful situation, brought about by people that are evil …” [My emphasis].  The President of the United States has essentially called Dr. Ford evil, and a liar.  Anyone that saw her demeanor during the hearing should recognize the President’s comments as loathsome cheap shots.

 

7. Perspectives color perception. “Outraged activists” to one citizen constitute an “angry mob” to another.  I remain stunned by each group’s inability to see its own excesses.

 

Part II this week; and we will put 007’s skills as a political prognosticator to the test  😉

Two laments as this process continues:

I noted news reports this morning indicating that Republicans wished to hurry the vote on Judge Kavanaugh’s nomination. Admittedly being my most Pollyannish: Shouldn’t they want to hear all the testimony — on both sides — before deciding whether Judge Kavanaugh should be confirmed? And if you were Jugde Kavanaugh and innocent as he claims, wouldn’t YOU want all evidence heard rather than ascend to the Supreme Court, if at all, under an undeserved cloud?

Admitting that I am fastidious, I was very disappointed to see Judge Kavanaugh — a SCOTUS nominee, for Heaven’s sake — pleading his case (with Mrs. Kavanaugh) on…Fox News. It shreds any remaining vestige of an impression that the Justices put aside partisan politics. (I’d feel the same if a nominee of a Democratic president was reduced to pleading his/her case on MSNBC.)

Tomorrow…will bring another turn of this unfortunate ride…

A few months ago, I listed the criteria by which I felt Judge Kavanaugh’s nomination — as well as that of any other Presidential nominee — should be judged: (1) Is the nominee qualified for the prospective post? And (2) If so, was there any other factor, such as a substantiated history of drug abuse, sufficient to nonetheless disqualify the nominee?

Conceding that at the time of this post, a credibility contest exists between Judge Kavanaugh and Dr. Ford… If I had a vote, I would now vote to deny Judge Kavanaugh under the second criteria for the reason that I submit that any rational, nonpartisan jury would: the Judge has everything to gain by lying, and Dr. Ford (1) has nothing to gain by lying and (2) wouldn’t have subjected herself and her family to an obviously predictable hyperpartisan whirlwind if she wasn’t sure that it was Judge Kavanaugh that assaulted her.

No matter how this turns out, no one will be a personal “winner” here…