President Donald Trump’s nomination of Judge Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy will make most Republicans happy and has most Democrats twisted into knots. Those knots are likely caused by Kavanaugh’s conservative credentials as well as a still-festering wound over the unprecedented and blatantly partisan treatment of President Barack Obama’s nomination of Judge Merrick Garland.
For those Democrats willing to look critically in the mirror, those knots may also be caused by the understanding that when it comes to the objective review of Kavanaugh’s qualifications, he appears to be a well-educated, thoughtful and deliberate jurist. The kind who, in another day and age, perhaps in the “pre-Bork” era, would have sailed through the Senate confirmation process.
In the end, as much as Democrats may dislike the nomination and how we got to this moment, I’d posit that Democrats have little chance to block Kavanaugh’s nomination. That does not mean that Kavanaugh should not be subjected to a rigorous confirmation process. Democrats and Republicans have every right, indeed the obligation, to question Kavanaugh extensively about his political background and his approach to the law, precedent and the Constitution. But in addition to conducting a tough, yet fair, confirmation process, Democrats should look to an equally important goal — the 2018 and 2020 elections.
There is little doubt that the political atmosphere has turned toxic, the partisan divide has grown wide and the media has been vilified to the point where some of the public no longer views them as honest information brokers. All three of these facts are bad for America and our democracy. How to right this ship continues to be the subject of great debate. I will suggest, however, that, simultaneously with a rigorous confirmation process for Kavanaugh, Democrats should heed the increasingly frequent advice that they must talk more about what they are for and not what they are against. Let’s talk more about Congress and state legislatures doing their jobs by passing laws that enshrine what a majority of constituents are for.
While I do not subscribe to the idea that the judiciary has been “activist” in the pejorative sense that it “makes” rather than “interprets” the law, it is certainly fair to suggest that law is developed by all three branches of government. When working properly, however, the legislative branch is where the process should typically begin. Identify what you believe, take it to the court of public opinion and enshrine it in law through the action of state legislatures and Congress, and not rely on executive action, the courts or the often criticized administrative state.
Want to protect Roe v. Wade? Rather than rely on the Supreme Court to reject restrictive state statutes, win elections and pass affirmative legislation. Want to protect the environment? Win elections and enshrine those protections in new laws, thus making it about the law, not about the authority of regulatory agencies. Want to protect labor unions, access to health care and on and on? In each such instance, the issue is the same.
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