In normal times under ordinary circumstances, the nomination of Brett Kavanaugh, President Donald Trump’s choice to replace Justice Anthony Kennedy on the United States Supreme Court, might have been a slam dunk. Elections, after all, have consequences and the occupant of the White House gets to pick whom he – or she, when that day comes – pleases to fill a court vacancy. The Senate, doing its job, advises and consents – and then casts a vote, thumbs up or thumbs down.
In normal times under ordinary circumstances, court nominees would be evaluated on knowledge of the law, experience on the bench, temperament, ability and intellect. Nominees would be judged on objective grounds.
But these times are not normal, and there is nothing ordinary about the process these days.
There are myriad reasons to pitch against the president’s nominee, but one of the more compelling arguments is this: Kavanaugh is a polarizing figure who would move the country’s jurisprudence profoundly to the political right for decades to come while the country continues to trend decidedly left of center.
And here’s the evidence:
● Democrats have won the popular vote in six of the last seven presidential elections.
● Support (57 percent) for legal abortion remains as high as it has been in two decades of polling, according to the Pew Research Center.
● The Affordable Care Act – our nation’s health care law – reached its highest level of approval (54 percent) this past May, according to a Kaiser Family Foundation poll.
● This year, Gallup polling found two-thirds of Americans – 67 percent – feel that laws covering the sale of firearms should be made more strict.
● Gallup polling from May shows 67 percent of Americans support same sex marriage.
● According to CBS News polling from this year, 87 percent of Americans support legal protections for undocumented immigrants brought to the U.S. as children. Not only is there support for those Dreamers, but most of the public thinks that other undocumented immigrants should be given a chance to stay in the U.S. legally, too.
No wonder a majority of Trump voters said they were motivated by the political makeup of the Supreme Court. Considering the Republican-controlled Congress’ inability to pass significant legislation other than tax reform, that was the only available option for conservatives to affect law, to impede if not strike down social progress. And these are the very issues the Supreme Court will be weighing in the years ahead.
As expressed in law, these are the pre-eminent issues that have galvanized the Trump base and have the administration working at break-neck speed to dismantle. They see the clock ticking toward the fall elections where Republicans may lose control of the House and, perhaps, the Senate.
Time is of the essence to stack the court – no matter the process.
Back in normal times before Senate Majority Leader Mitch McConnell dynamited the process in favor of political expediency, a court nominee needed 60 votes in the Senate to be seated on the court.
McConnell, to help Trump along with his conservative selections, lowered the bar to a simple majority.
This is the same McConnell who, hours after the death of conservative Justice Antonin Scalia in February 2016, said the Senate would not confirm a replacement until after that year’s election. In effect, he was denying the will of the people who voted Barack Obama into office twice.
And in a process invented out of thin air, McConnell stripped the Constitutional duty and influence of a sitting president.
Well, what goes around comes around.
President Trump and his campaign are under federal investigation for colluding with Russian agents to undermine our elections.
Definitely, not normal.
Trump is clearly in legal jeopardy with the federal probe. In picking Kavanaugh, the president could be choosing his own judge and jury – a nominee who has argued for expansive presidential powers.
And while this just may be the most compelling reason of all to tap the brakes and slow this process down, in combination with the country’s political drift to the left, we believe the court and the country can and must wait for the next confirmation.
Let’s first hear from Robert Muller III, the federal investigator heading up the Russia probe. And then let’s hear from the people on election day.
As McConnell said in February 2016, “Give the people a voice in the filling of this vacancy.”
We agree, senator.
Who knows, maybe we can recapture a sense of normalcy in the process.