By John Krull
INDIANAPOLIS – Once again, we Americans are about to have another of our national mud-wrestling matches.
We call them U.S. Supreme Court confirmation proceedings.
John Krull, publisher, TheStatehouseFile.com
When Justice Anthony Kennedy announced he would retire from this country’s highest court, the combatants prepared to slosh their way into the ring.
The stakes are high.
One of the reasons Republicans focus so much on the Supreme Court is that it may be the only part of the federal government they can control in coming years.
The GOP has lost the popular vote in six out of the past seven presidential elections. Republicans hold the U.S. House of Representatives only because of “reforms” adopted in the 1920s designed to dilute the political power of immigrants – “reforms” that gave disproportionate representation to voters in rural America. The U.S. Senate is theirs by a slender margin, and their Senate candidates in the 2016 election tallied more than 5 million fewer votes than Democratic candidates did.
It’s likely to get worse.
Because Republican voters tend to skew older, mortality has become perhaps the party’s greatest adversary.
Hence, the GOP fervor – maybe even desperation – to control the court.
Democrats have their own reasons to get down and dirty.
Because justices and judges serve for life and are beyond the voters’ reach, they know that a justice – any justice – can have an impact on American life and law that can stretch beyond three, four or five presidencies and who knows how many Congresses. Democrats see hard-won policy victories in the areas of reproductive rights, labor rights, LGBTQ rights and other gains as imperiled, perhaps for another two generations.
That’s why a relatively bland figure such as Judge Brett Kavanaugh – President Donald Trump’s nominee to fill Kennedy’s seat on the court – provokes so much ardor and animosity.
Kavanaugh is a careerist, a man who began angling to be a Republican appointee to the nation’s highest bench from the moment he could form sentences. He worked his way through the ranks. He helped Special Counsel Kenneth Starr investigate President Bill Clinton and carried water for President George W. Bush before becoming a judge.
At least part of his appeal to the GOP brass, one suspects, is that he knows how the game regarding Supreme Court nominations is played.
He knows that prospective justices have to say as little as possible and certainly nothing that might indicate original or independent thought.
That’s why, at his announcement, Kavanaugh trotted out a string of clichés that a 1920s sportswriter might have envied.
He said a justice’s job was to interpret the Constitution “as written,” but also as precedent has interpreted our founding document.
Which says absolutely nothing.
Conservatives love to condemn “activist” judges, a curious position for people pinning their hopes on the least democratic (with a small “d”) branch of government to overturn positions and policies that have broad public approval.
But the reality is that we have been arguing about what limits, if any, should be imposed on government for about as long as we have been a nation.
The Tenth Amendment’s “necessary and proper” clause – also known as the elastic clause – prompted skirmishing between Alexander Hamilton and Thomas Jefferson in George Washington’s presidency.
Hamilton and Jefferson established a pattern that has run like a river through American history. At different times, each man argued at different times for either greater or more limited powers for the federal government – based on whether his party was in power.
Brett Kavanaugh, the people who support him and the people who oppose him won’t talk about anything that substantial, of course.
The discussion instead will focus on trying to find clues, often ripped out of context from his writings, that might indicate how Kavanaugh might conduct himself after we have placed him in a position to shape our lives until his own has ended or he chooses to leave.
We also will look for any indiscretions in his past, a likely fruitless pursuit with a candidate whose only true passion seems to have been ambition.
The result will be to turn him into a cartoon figure, either sympathetic saint or sneering sinner, depending upon one’s partisan perspective.
Those desiring a more edifying experience than this nomination battle should look elsewhere.
“The Jerry Springer Show” might be a possibility.
John Krull is director of Franklin College’s Pulliam School of Journalism, host of “No Limits” WFYI 90.1 Indianapolis and publisher of TheStatehouseFile.com, a news website powered by Franklin College journalism students.