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Kavanaugh, The Senate, and Our Political Bias
BY: T. Franklin Murphy | September 2018
This week we have a hearing in the Senate where the decision has already been made. The political games interfere with the protecting purposes of the constitution. We can still draw personal lessons and check our own biases and open our hearts to clearer decisions.
A deal has been struck and the stage set for the dramatic hearing for the sexual assault allegations by Christine Blasey Ford against Supreme Court nominee Brett Kavanaugh. As the moment of truth moves closer, the rhetoric increases. The GOP senators intending to keep the questioning focused and on the alleged assault; while the Democrat senators intend to broadly paint a picture of Judge Kavanaugh’s impetuous and unbecoming actions. While the hearing will be informative about the nature of the assault, the outcome of the hearing has been largely determined along partisan lines already.
From my American Government classes in high school and college, I learned of the balancing power of the Supreme Court, designed to tame the fickle political games with a steady hand of judicial review. The checks and balances were masterfully built into the constitution by our wise forefathers. The Supreme Court Justices are appointed to the court by the President of the United States. His nominees then are screened by the United State Senate to prevent the tyranny of a demagogue president from filling important offices with accomplices.
This no longer appears to be the case. The Republican party seems to be in collusion with the president, trumping the individual roles of checks and balances. Supreme Court justice hearings have traditionally been contentious because of the formidable influence a justice has over American politics. I’m disturbed by the recent political wrangling over the nominees. In the Spring of 2016, President Obama nominated Merrick Garland to replace Justice Antonin Scalia who died in February of that year. Garland was widely seen as a moderate, expected by many to fairly and judiciously review cases based upon legal standards. Unfortunately, the Republican led senate had no intent to move another Obama nominee onto the court, issuing in a new level of political strategy to weaken the court’s balancing power.
In an August speech in 2016, McConnell declared: "One of my proudest moments was when I looked Barack Obama in the eye and I said, 'Mr. President, you will not fill the Supreme Court vacancy.' " The eleven Republican members of the Senate judiciary committee signed a letter that they had no intention of consenting to an Obama appointee to the court. No hearing was ever conducted for Garland. (NPR.org)
April 2017, President Trump’s nominee, Neil Gorsuch, was confirmed and he took his chair. This political tactic by the Republican stronghold in the Senate had a significant impact on Supreme Court decisions during the following year—a notable shift, with justices voting along partisan lines. The John Roberts court has shown to be zealously involved in partisan rulings, throwing out bipartisan legislation on voting rights and campaign finance, and overruling precedents on labor unions, anti-trust, and criminal justice.
John Roberts is famously known for his statement comparing judgeship with an umpire:
“Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role.”
Unfortunately, these sitting umpires are notably wearing their team colors, with red seeing a strike and blue arguing it's a ball. As David Leonhardt says in his New York Times Opinion column, “Hypocrisy isn’t good for credibility.”
Robert Jackson, a former Supreme Court justice, described “dispassionate judges” as “mythical beings” like “Santa Claus or Uncle Sam or Easter bunnies,” (Barrett pg. 238). The umpire metaphor is intriguing but the simpleness of whether a ball is within a defined strike zone or not does not compare well with the complexity of life's appropriateness judged against the guiding boundaries of the Constitution.
As the Senate hearing of the testimony of Christine Blasey Ford begins, we can expect the umpires, dedicated to a fair and impartial examination, zeroing in on errors of memory recall, suggesting the normal rascalness of youth, and alluding to a collusion by the Democrats to undermine a constitutional process, while quickly forgetting their own maneuvers two years ago to deny Garland a hearing.
Approaching this fair and impartial hearing, where the senate is to hear new evidence of improper conduct, the Senate Majority leader declares, "In the very near future, Judge Kavanaugh will be on the United States Supreme Court. So, my friends, keep the faith, don't get rattled by all of this. We're going to plow right through it and do our job," (USA Today, September 20, 2018). The umpires have called a strike before the ball has even been thrown.
"It ain’t so much the things we don’t know that get us into trouble. It’s the things we know that just ain’t so." ~Artemus Ward
We, as a public, can use these hearings as a guide to examine our own prejudices. Have we quickly proclaimed guilt or innocence strictly inline with our political party? Do we make justifying new criteria for supporting our opinion, such as: “I have no doubt that, if the attack on Dr. Ford was as bad as she says, charges would have been immediately filed with local Law Enforcement Authorities by either her or her loving parents. I ask that she bring those filings forward so that we can learn date, time, and place!” (USA Today) or conversely that the accuser should be unquestionably believed. Neither approach is just.
As we move forward, we must keep in ind our prejudices. Has the #metoo movement been just a small bump in the road that has relatively little lasting influence over politics and men’s behavior? As a nation, will we discredit accusations before they are even expressed? Will we respond with the callousness of Brock Turner’s father, “His life will never be the one that he dreamed about and worked so hard to achieve. That is a steep price to pay for 20 minutes of action out of his 20 plus years of life.”? (italics added)
We will never know exactly what happened on the night in question, or of certainty the nature of the man accused of this crime, but we can gain better insight into our prejudices and our inclinations to blindly accept rhetoric without passionate and honest examination. As we examine our own souls for hypocrisy, keep in mind Supreme Court Justice William Brennan’s advice, “Sensitivity to one’s intuitive and passionate responses, and awareness of the range of human experience, is therefore not only an inevitable but a desirable part of the judicial process, an aspect more to be nurtured than feared,” (Bennett pg.240).
Bennett, L. (2018). How Emotions are Made: The Secret Life of the Brain. Mariner Books
Bryce, J. (1995). The American Commonwealth. The Liberty Fund, Inc.
Cleary, T. (2016). Read: Full Letter to the Judge by Dan Turner, Brock's Father. Heavy.com
Elving, R. (2018) What Happened with Merrick Garland in 2016 and Why It Matters Now. NPR
Fritze, J. (2018). Trump Changes Tone on Kavanaugh Accuser, Asks Why She Waited to Bring Sexual Assault Allegation. USA Today
Leonhardt, D. (2018) The Supreme Court is Coming Apart. New York Times