Not so long ago, Supreme Court justices could be confirmed by acclamation. The confirmation process focused on intellectual rigor, character and independence, not political leaning or affiliation. Both sides of the political aisle could collaborate and agree.
In recent decades, the confirmation process has been progressively poisoned with politics. Justices have been nominated for their support of the party in power, to add to a conservative or liberal bloc on the Court, and, ultimately, to secure a predictable, controlling majority.
As a result, the confirmation process has become more and more fractious and the Senate votes more narrowly partisan.
No matter your party (or idealogy), this is a dangerous trend. It has reached crisis phase with the Kavanaugh nomination and confirmation.
The Kavanaugh confirmation will be remembered as the closest, most partisan vote in modern history — eclipsing even the Clarence Thomas vote in 1991.
The following illustration charts confirmation votes for Supreme Court justices since 1975. It shows the growing partisan and cultural divide, the pinching off of collaboration, and the failure of representative government.
Think of the closing trend lines as a graphic illustration of the narrowing of the arteries of democracy (“Democratic Arterioclerosis”).
Imagine if, in this latest round, the Senate – the “world’s greatest deliberative body” – had responded to the political pressures of the Kavanaugh nomination by stepping back, agreeing that the unseemly fight sure to follow would so damage the image of the Senate and the integrity of the Supreme Court that this nominee should be rejected and replaced with a more moderate one, one who could be supported by the largest number of members from both sides of the aisle — for the sake of institutional integrity.
Did not happen.
Instead, freed of the filibuster, the Republican majority charged ahead — the minority Democrat members sidelined and ignored.
Then came the allegations of sexual misconduct — echoes of the Clarence Thomas debacle — but this time set amidst the growing angst and awareness of the #MeToo movement.
With a deadline set ahead of the looming mid-term election, the theatrics of volcanic anger and the shock of mockery, careful inquiry and factual truth were avoided and obscured. Credible testimony of sexual assault was dismissed as a “Democratic conspiracy” sponsored by George Soros and the vengeful Clintons. A “hit job.”
Imagine if, as tempers rose and the accusations flew, the Senate had called a time out and agreed that the nomination should not proceed without, at the very least, an exhaustive FBI investigation — no matter how long it might take — for the sake of instituional integrity.
Did not happen.
Instead, art-of-the-deal–strong-man strategies — misdirection, hyperbole, fighting back – pushed the process forward, fed the news cycle and, supposedly, energized the Trump base.
In the aftermath, the institutions of the Senate and the Supreme Court have been damaged, the credibility of each, impaired.
The Senate process looked like an unplugged UFC fight fest. The essential independence of the Supreme Court (actual and perceived) was overrun by politics.
More than ever, the Supreme Court has been made to look like a mere extension of the executive and legislative branches of government and their political “excesses.” Constitutional “checks and balances” have been eroded and the Court compromised.
Only the VOTE promises some measure of correction. We must organize to get out a vote for change: this November and in 2020. Out with the sclerotic old and in with the new.
Elect those able to return our democracy to fair representation, effective collaboration and service of the greater good.
The future of our great country and its democratic institutions depend on it.