This is what the Supreme Court nomination process has come to: The moment Justice Anthony Kennedy announced his retirement on June 27, liberal activist groups sprang to action, launching campaigns to oppose President Trump’s replacement.
This was long before the president announced Brett Kavanaugh as his nominee.
The activists had one main theme — the nominee would allow the court to overturn the Roe v. Wade decision that legalized abortion.
That is a bit of a canard. The court has been in conservative hands for many years without changing the thrust of that decision, and it is unlikely some of the sitting conservatives on the court would be inclined to go along with such a thing.
This is, more than anything, an effort by these special interest groups to raise funds — something that always is easier the higher the level of hysteria and angst.
To be fair, conservative groups would use similar, if opposite, tactics if Hillary Clinton had won the election in 2016 and were now nominating Kennedy’s replacement.
This political game has been played now for more than a generation, dating at least to Ronald Reagan’s unsuccessful nomination of Robert Bork to the Supreme Court in 1987. It has been exacerbated by the advent of social media, where political hyperbole is a way of life for many.
For some members of the Senate Judiciary Committee, confirmation hearings are opportunities to gain attention on social media, or on more mainstream media outlets, through bombast or long statements, rather than opportunities to explore qualifications.
Amid all the noise and distraction, it’s important to consider the oaths a Supreme Court justice is required to take. There are two of them. One is the oath required of all federal officials. It says:
“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
The other is a judicial oath:
“I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”
A proper confirmation hearing would focus on Kavanaugh’s judicial qualifications and on his dedication to the principles outlined in these oaths. That shouldn’t sound so hopelessly naïve, even in this age of hyper-partisanship.
Democrats know they are unlikely to thwart this confirmation, just as they may not be able to get all Democrats, particularly those in Republican-leaning states, to vote no. They also ought to know that the future justice will consider many matters other than those dealing with abortion law.
Neither side of the political debate serves the American people well by turning a confirmation hearing into a political circus. Neither does justice to the principle of constitutional government by painting each nomination as cataclysmic.
We urge both sides to focus instead on the bedrock principles and qualifications that make for sound jurisprudence. That is what would serve the nation best, even if it isn’t good for rallying an ideological base.
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