The reporting on the nomination of Brett Kavanaugh to fill the Anthony Kennedy seat on the Supreme Court will revolve around tactics and trivia - efforts to sway undeclared senators; nuances of 300 written opinions; details of an apparently exemplary life. The Kavanaugh appointment is not about abortion, impeachment, healthcare, or the vote of one or two senators. It is not really about "liberal" or "conservative" in the sense that the justices have personal views on social issues, religion, security, or the economy. It is about Alexander Hamilton's belief in the Constitution as a guarantee of liberty against the appetites of a democratic mob, and the Supreme Court's fealty to limitations of legislative and executive power in the Constitution as the ultimate protector against democracy run amok. Brett Kavanaugh represents the ascendency of Hamilton's federalist majority on the Supreme Court - the product of quiet, tedious work in the fields - which has been gaining ground for 36 years.
Major shifts in governmental philosophy occur in long cycles. What is happening today can best be understood in relation to the "Warren Court" of 1953-1969. Chief Justice Earl Warren, three times elected governor of California, vice-presidential nominee with Thomas Dewey in 1948, and arch-enemy of Richard Nixon, was a politician rather than a jurist. He saw the courts as an alternative path for political objectives which could not be achieved by legislation. Prominent members of the Court during the Warren era included Justices William Brennan, William O. Douglas, Hugo Black, and Felix Frankfurter, who shared his activist and liberal orientations. In a large sense, the Warren Court represented a philosophical continuation of FDR's New Deal with expansion of equal educational opportunity for minorities, application of the Bill of Rights to the states as well as the Federal government, and the eliminatioin of prayer in public schools. By today's standards, much of the output of the Warren Court would seem mainstream, and for the intervening 49 years the role of the courts as arbiters of social norms has largely continued. For most justices, this is decided law.
So it was in 1982 when a handful of law students in Chicago, Cambridge, and New Haven supported by leading conservative thinkers such as Ronald Reagan's Attorney General Ed Meese and Solicitor General Robert Bork began to organize the movement which sought to return the courts to their limited role of applying the law, rather than extending it to match their social or political objectives. Today the Federalist Society is organized into a faculty division, a student division with 10,000 members on 200 campuses and a practicing lawyers division with 60,000 members. Prime funders include the Chamber of Commerce and the Koch Brothers. Rather than advocate for specific issues, the Federalist Society is based on the clear principle that "the state exists to preserve freedom, that the separation of governmental powers is central to our constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."
These are serious thinkers. They want less power for their profession as judges, rather than more. Bork and Antonin Scalia were original Federalist Society faculty advisors. Current members Samuel Alito and Neil Gorsuch are proud members. Chief Justice John Roberts is more circumspect, but has been identified as an advisor earlier in his career. Justices Clarence Thomas has been a headline speaker at a Federalist Society event. Assuming Kavanaugh's Senate approval, the court will undoubtedly have differences in applying precedents or interpreting the original intent of the drafters, but they will be united in their belief that it is not their job to expand the constitution or the Congress' written laws. There will be no more mistakes such as Sandra Day O'Connor and David Souter who, after being appointed by President Reagan and George HW Bush migrated toward the center.
When George W. Bush became president in 2001, he abandoned the long standing practice of seeking ratings - Unqualified; Qualified; Highly Qualified - for judicial appointments from the American Bar Association, whose increasingly liberal leaning had led to obvious bias in their ratings. That left the door open for President Trump to promise during the 2016 campaign that he would rely on a list recommended by the Federalist Society, knowing that he would get candidates of great intellect, strong character, and consistent opinions that would be trusted to limit the role of the court to applying the law as written, rather than deciding that the president should not have the power to limit imigration from Muslim majority countries, or that illegal immigrants are entitled to all of the protections of the Bill of Rights. If the consensus is wrong and Kavanaugh does not get confirmed, there will be a similar resume for the next Senate which will probably have more Republicans. And if Justices Ginsberg and Breyer cannnot continue will into their 80's, or if Trump gets re-elected, there will be three or four of these Trump appointments to what was already a conservative-leaning court.
Much has been made of Establishment Republicans becoming "Never Trumpers". That is true of some in the business branch who are concerned about trade, but not $700 billion deficits, and the internationalist branch who are concerned about relations with traditioinal allies, but not burden sharing in light of our $20 trillion national debt. Not so the legal system Establishment branch, which is enjoying a sweet spot which will last decades, regardless of congressional or presidential politics.
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This week's video is the Number Two Democrat in the Senate calling for at least three of his party colleagues to commit political suicide by voting against any Trump appointee, despite the president's popularity in their states. Go for it!
bill bowen - 7/13/18
DISRUPTION is uncomfortable. The President continued to disrupt the old line political system of the US, it's allies and it's "foes". He gave a hint a few days back when he said that America basically leads a world of competitors. Allies and enemies alike. He is out to level the playing field internationally. After all, that is what President Obama did domestically, isn't it? For more than 70 years since the end of WWII the US has rebuilt the world beginning with European allies and then our vanquished enemies in Germany and Japan. We modernized everything for them and returned them to modern society. Then, for 70 years we paid their defense bill for them holding Russia and China in check. Around 1985 those free services began to take their toll on American workers. Mexico invaded the US with 31 million illegals taking away the jobs of millions of American workers. And, restricting middle class workers household income. At the same time the rise of the working class in the far east and Mexico began to create an opportunity for American companies to take their jobs overseas further devastating the American workers income opportunities. Meanwhile these "allies" of ours continued to place tariffs on our goods and pay little for the UN and the common defense. And, the "foes" stole our intellectual property. With Allies like this, who needs "allies"? The President is clearly on a mission to call out this behavior and change it. The "swamp" is very nervous. On the other hand the reason you see this public outrage, followed by closed door discussions is that the "allies" and "foes" know exactly what he is talking about. Remember during the campaign the "Donald" said 'China and Russia think we are idiots'. What he did not say as loudly is "so do our allies". Now he is just pointing out and addressing that all countries have been gaming the system and taking advantage of the US. They are all competitors. The UK, Russia, China, North Korea, South Korea, etc. Let the man do his job and see what happens.
Posted by: Bill McCormick | July 17, 2018 at 09:26 AM