Someone in recent days referred to Trump’s new Supreme Court nominee Judge Brett Kavanaugh as the Zelig of modern Republican politics as he has apparently played a role in nearly every major GOP political endeavor over the past quarter century. He worked with Ken Starr during the Clinton investigation in the 1990s and reportedly penned some of the crazier passages in the infamous Starr report. He served on the George W. Bush presidential campaign and played an important role in the Florida recount controversy, subsequently taking a job in the Bush White House, where he met his wife. Bush then appointed him to the DC Circuit Court, though not without a struggle.
Of course, none of this would be considered disqualifying for a lifetime appointment on the nation’s highest court. That said, let’s not pretend that appointment and confirmation isn’t an intrinsically political process, much as impeachment is. If an attorney can refuse a juror based on the way he or she looks, I think it’s fair to expect that a senator has every right to reject a presidential nominee on the basis of his or her judicial philosophy. The right always attempts to characterize their “originalist” approach to constitutional law as a pragmatic practice of calling balls and strikes, following the law and the constitution as written, etc. The truth is far more complicated, of course – they have a political agenda that they’ve been pursuing relentlessly for decades while the center-left has been asleep on this issue. That’s why, even with Kennedy, we have a Supreme Court that’s well to the right of the American people.
So, given the fact that we are a politically divided nation (there are more people on the center-left than on the right, but let’s call it even for the nonce) and given the fact that judicial appointments are always made with a political agenda in mind, why the hell don’t we leave the Court the way it is, split down the middle, 4 to 4? It worked for Mitch McConnell in 2016, and frankly, it worked for me, too, particularly with decisions like Freidrichs v. California Teachers Association. As long as we as a nation are politically polarized, our highest court should reflect that polarization. A raft of 4-to-4 ties would simply mean there would be no national precedents set unless there was an unusual level of consensus on a specific case, such that one or more members of the opposition joined in a majority opinion. That seems like a better situation than having a permanent, predictable reactionary majority on the Court that is way out of step with public sentiment and basic human needs.
So, count me among those who say denial is better than delay. Block Trump’s appointment – Kavanaugh or no – and leave the Court at eight justices.
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jp
Probably the most dangerous element in this speech was Trump’s comments on India. Bush made some effort to balance his administration’s outsized relationship with Pakistan by working with India. The current president suggested greater Indian involvement in resolving the Afghan conflict, which would absolutely drive Pakistan’s leaders mad. Their principal adversary active on two fronts? Not a good outcome from their point of view, and that would make another devastating conflict between India and Pakistan even more likely.
Gary Johnson, on the other hand, is clearly not the brightest ex-governor on the porch and hasn’t made much of a case for why young people should give their vote to a ticket that’s floated in part with Koch money, most likely. Perhaps his supporters are not aware that he would slash spending on just about any program that ever benefited them in any way. If American style libertarianism is about anything, it’s about that. Not that it’s likely to be much of a problem – he, like Stein, have no conceivable path to victory in this election. All they have is an extraordinary opportunity to hand Donald Trump and the hyper-reactionary Republican party an electoral victory this November that they don’t deserve and that will have repercussions for many years to come.