WASHINGTON, DC – If there was any discussion whatsoever about constitutional law in the fight over Donald Trump’s Supreme Court appointment to replace Anthony Kennedy, the public didn’t hear it and won’t remember it. That may be the worst of the fallout from the way this unfortunate political-media-social spectacle unfolded.
As with too many other important matters facing our society, the most vocal interlocutors in this debate were unambiguous agents of partisan warfare, and saw this appointment as nothing more than another battlefield in the fight between Republicans and Democrats.
Instead of statecraft, we just got more political theater tailor made for television ratings and campaign donor list emails. Rather than articulating and defending a coherent theory of jurisprudence and contrasting it with Kavanaugh’s record as a judge, Democrats played it like a campaign for elected office, and employed some of the most unsavory tactics of unscrupulous electioneers.
And it is clear at this point, as Steve Bannon told a journalist Friday night, that Republican activists, especially die-hard Trump loyalists, saw the battle to confirm Brett Kavanaugh to the Supreme Court as a proxy fight for Trump’s presidency, not an event with far-reaching policy consequences in the future of the U.S. judiciary.
Democrats could have mounted a highly relevant and admirable resistance to Brett Kavanaugh by challenging the entire basis for his Republican support in the Senate: the not entirely credible notion that Judge Kavanaugh is a legal originalist and strict constructionist, a stalwart defender of the Constitution and Bill of Rights.
Throughout his 12 years on the bench, Kavanaugh has “consistently articulated a broad view of executive power… and skepticism toward the enforcement of individual rights under the Constitution.”
His support for the Patriot Act as White House Counsel for President George W. Bush from 2001-2003; his support on judicial panels for the suspension of habeas corpus in appeals from Guantanamo detainees; and his ruling in favor of the federal government’s vast metadata surveillance programs revealed by Edward Snowden— all three comprise a compelling case against the argument that Kavanaugh will stand for the Bill of Rights.
If confirmed, he will remain for Republican partisans, a mythical strict constructionist like Antonin Scalia, but if he rules consistently with his judicial record so far, Kavanaugh will hardly be another Scalia when it comes to defending the Fourth Amendment.
There may not be anything wrong with that, but there is something wrong with a process of advice and consent that went so awry that to what little extent the policy debate even happened at all, it was completely swallowed up in the partisan debate.
And that’s why the measured voices of independent voters are more important to the future of this republic than ever before.