Kavanaugh and the emerging new normal

Kavanaugh and the emerging new normal
REUTERS/Joshua Roberts
Supreme Court nominee Brett Kavanaugh testifying during the second day of his confirmation hearing before the Senate Judiciary Committee.

After writing a couple of pieces on the Brett Kavanaugh confirmation hearings, I stopped writing about it but kept watching. I saw almost every minute (and that was a lot of minutes). It was mostly quite boring. Kavanaugh was well-schooled in the modern bipartisan practices, post-Robert Bork, which is to use various reasonable-sounding excuses to say little of substance and especially nothing that could cause controversy.

It seems overwhelmingly likely that all or almost all Republicans will vote aye on confirmation and most or all Democrats will vote no. This didn’t used to be the way this worked, but now it is. (In fact, it used to be the norm that most Supreme nominees were confirmed unanimously, or nearly so.)

Barring surprises, Kavanaugh, a mere snip of a lad of 53, will serve for several decades. Appointing them young is part of the new normal.

And it’s even more certain that Kavanaugh will vote what is essentially the Republican line on the court, which portends a great many 5-4 party-line decisions until something changes. Another part of the emerging new normal is that appointees of Republican presidents will try to arrange their retirements to occur during the tenure of future Republicans, and the same for Democrats.

I’m pretty sure that Sen. Amy Klobuchar and Cory Booker were right in their expressed suspicions that one of the great attractions of Kavanaugh, for the current incumbent in the White House, was the fairly extreme position Kavanaugh has developed on the power of presidents, especially the power to not be held accountable for violations of the law. Perhaps we’ll find out.

I assume that the newest wrinkle of the new normal is that if vacancies occur when the Senate is controlled by a party other than the president’s party, no one will be confirmed and the vacancy will remain open. (The Republicans started that with their unprecedented refusal to even hold a hearing on President Barack Obama’s nomination of Merrick Garland in 2016. Or perhaps there’s a Republican version of that history in which it was the Dems who started it. As I say, I expect it to become normal.) Or maybe there will be deals made. The old normal is dead. All hail the new normal. Or don’t hail. I don’t much care for it.

By the way, the old normal wasn’t very old. I did a history piece on Supreme Court nominations, full of my usual historical tidbits, a couple of months ago. If you missed it, it’s available here (and I guarantee you will find some things that surprise you, unless you’ve already read it).

But in case you don’t look it up, I’ll just mention that there were no hearings at all for Supreme Court nominees before World War I, and the first time the actual nominee testified at a confirmation hearing was 1939, and that nominee declined to answer the senators’ questions on any of his views.

As I have also previously argued, there’s something disturbingly undemocratic about a system in which unelected lifetime appointees are empowered to overrule the doings of all the elected branches. Supposedly, this is justified because they are simply enforcing the correct meaning of the Constitution, but that foolishness is harder to credit with each passing year.

Comments (12)

  1. Submitted by Paul Brandon on 09/10/2018 - 02:08 pm.

    First of all, I agree with the proposal to limit the term of Supreme Court justices to 18 years, guaranteeing that every president will get to appoint at least two.
    And after the blatant political hijacking of Merrick Garland’s appointment, it wouldn’t surprise me if the Democrats decide that bar fight rules go, and add two members to the Supreme Court (the Constitution says nothing about the size of the court, only that Presidents shall make the appointments.

  2. Submitted by Paul Udstrand on 09/11/2018 - 08:58 am.

    To the extent that we have a “new” normal, we shouldn’t be surprised. Democrats and Republicans spent decades deconstructing the old normal by consolidating more and power among conservatives. Democrats spent decades accommodating and normalizing magical thinking and toxic politics, and when you empower fascist, fascist end up in power.

    Originalism was never anything more than a conservative fantasy, and it was always an extremely dangerous assault on judicial reason. Yet, Scalia was confirmed with 98 votes in the Senate, there were zero votes against Scalia. So Democrats have finally realized that magical thinking has no place on the bench and they’re voting against it… is that really a “bad” thing?

    So what’s really changed? Democrats may no longer be voting for “Originalists”, but they’re still getting confirmed.

    Having said all that I don’t take nearly as dim of a view on the new normal as Eric. I was never very comfortable with the old normal that put Scalia on the bench, albeit without much controversy or debate. If American liberals have finally realized that these are battle worth fighting that can only be a good thing. The “fight” isn’t the problem, the fight is necessary. If fraud of “Originalism” is finally exposed and disposed THAT will be the new normal, and far better normal than we’ve been living with.

    • Submitted by Frank Phelan on 09/11/2018 - 09:15 am.

      It’s like Democrats naively thought they were playing a friendly game of sandlot baseball, only to find it counts in the standings, while Republicans were playing for keeps all along.

      And while I too am pleased Democrats have shown a little gumption, I also wonder how this will game out. Will the court always shrink when there is a vacancy while different parties control the Senate and White House? Will justices only resign when their party can successfully nominate a replacement?

      Perhaps justices while retire earlier than they otherwise might have in the past, not wanting to die an untimely death or become incapacitated at a time when no replacement will be seated, or the other party gets an opportunity to name a successor.

      Given some are talking about the next Democratic Senate & POTUS nominating two new justices, expanding the court to 11 members, will the size of the court constantly be in flux? Will the court have an even number of justices for years at a time, evenly split between parties?

      • Submitted by Paul Udstrand on 09/11/2018 - 10:03 am.

        Here’s where I can offer some optimism: I don’t think THIS is the new normal because the Republican Party is actually imploding. I also think that the neoliberal forces that have been containing liberalism in the US are collapsing. American’s have ALWAYS been more liberal than their political system, centrism was always a delusion.

        I think the political system is on the verge of moving towards the liberal majority, which means two things: Faith based neoliberalism and magical right wing extremism are finally losing their toxic grip on the body politic. The Democratic Party is already moving towards liberalism, and the Republican Party post Trump will either be nearly irrelevant, or a very different and more moderate Party. This will dramatically change the nature of SCOTUS nominations.

        • Submitted by Frank Phelan on 09/11/2018 - 10:11 am.

          A lot of us have been waiting for the right wing fever to break. I’m not holding my breath in anticipation of it any longer.

  3. Submitted by Joel Stegner on 09/11/2018 - 01:28 pm.

    Please do not call it normal for a nominee to be so evasive and be allowed to get away with it. If he acts to protect Trump from lawsuits, his legacy will reflect his subservience to a woukd be strong man.

  4. Submitted by Connie Sullivan on 09/11/2018 - 04:09 pm.

    Funny, that Eric here would forget to mention a couple of things that stood out for me and others in the Kavnaugh hearings: The rather clear fact that he lied to Congress (the Senate) in 2004 and 2006–and again, in last week’s hearings–about his knowledge of Bush WH dealings on torture, on GOP theft of democratic emails containing scotus appointee discussion strategy, and other issues.That’s LYING to Congress! By a Supreme candidate. Pretty much a definitive negative for a nominee.

    And, there’s the whole issue of why the GOP leadership thought it necessary to do that shameful song-and-dance withholding significant documents from the Senate Judiciary Committee, and outlandishly labeling much of what they did reveal “Committee Confidential”–meaning that the Committee members had the information but were prohibited by “rules” established by Kavanaugh supporters from publicly questioning him on those documents or otherwise making them public. None of the docs seemed at all classified or of a national security nature. A pure abuse of committee/party power, to hide stuff from us all!

    What was there to hide? More racist materials like what
    Cory Booker revealed about Kavanaugh? More about his twisted ideas about female sexuality and abortion, even contraception?

    Most Americans do not think much of Kavanaugh. I didn’t think the hearings were boring at all, and I wonder if Eric just should have taken a short afternoon nap to perk himself up for them.

  5. Submitted by Susan Downing on 09/11/2018 - 04:42 pm.

    I appreciate this observation of yours: ” ….there’s something disturbingly undemocratic about a system in which unelected lifetime appointees are empowered to overrule the doings of all the elected branches. ”
    It has given me something to reflect upon in our country’s continuing era of extreme partisanship which will be more apparent than ever in the upcoming Supreme Court back to full membership.

    • Submitted by Paul Brandon on 09/11/2018 - 05:50 pm.

      There is no such thing as ‘full membership’. The Constitution says nothing about the number of justices on the court. That is determined by the President with the advice and consent of Congress.

      • Submitted by Paul Udstrand on 09/12/2018 - 09:26 am.

        I think Ms. Downing was simply talking about filling the empty seat. We seem to be stuck at 9 seats total. FDR tried to change it and couldn’t.

        • Submitted by Paul Brandon on 09/12/2018 - 07:24 pm.

          I know what she was referring to.
          For another modest proposal, the size of the court could be ‘unpacked’ by eliminating the two most recent appointees and making the current court number seven.
          Unlikely, but not unconstitutional.

          • Submitted by Paul Udstrand on 09/13/2018 - 09:31 am.

            My modest proposal would be to have a liberal political Party in the US that wins elections and makes court appointments.

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