Political mobs are always in an uproar during the confirmation of a new chief justice. The Kavanaugh circus highlights that. But why so serious? The main reason is the Court’s betrayal of its constitutional role. American citizens view court nominees as the ultimate arbiters of whether they will be forcibly disarmed, stripped of their property, treated like prisoners when traveling, or denied sovereignty over their own bodies.
The Court’s post-9/11 apathy allowed for dubious government conduct.
The Supreme Court shirked ruling on the National Security Administration illegal wiretapping, instead rejecting a challenge in 2013 because the defendants could not prove the feds secretly spied on them. Edward Snowden released a deluge of documents proving vast illicit surveillance of millions of Americans. But because the Court never stood up for Americans’ constitutional rights, a 2015 appeals court decision, authored by Brett Kavanaugh declared that “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.”
In 1990, in the case of Michigan vs. Sitz , the Supreme Court upheld drunk driving checkpoints because the searches were equally intrusive on all drivers, so no individual had a right to complain. This stood the Bill of Rights on its head, requiring government to equally violate the rights of all citizens. The same legal mindset sanctifies Transportation Security Administration to treat all travelers like terrorist suspects.
In 2001, in the case of Atwater vs. Lago Vista , the Court upheld the arrest of any citizen accused of violating any picayune local, state, or federal ordinance. This case involved a Texas woman who was driving slowly in a residential area; because her children were not wearing seatbelts, she was handcuffed and taken away. The Court declared that police can arrest anyone believed to have “committed even a very minor criminal offense.” This ignores the criminalization of everyday life that has occurred at every level of government, thus giving law enforcement pretexts to detain almost anyone they choose. The police can find a reason to pull over almost any driver.
In 2005, in the case of Kelo vs. New London , the Supreme Court approved local politicians confiscating private property as long as they believe that some other private use of the land would generate more tax revenue. Scuttling the Fifth Amendment’s Takings clause (which restricted the use of eminent domain), the Court instead empowered governments to commandeer any land for almost any purpose so long as government officials promised net benefits to society sometime in the future. This bizarre decision makes private property rights contingent on political candor.
What would make people behave this way?
One explanation is that the left’s visceral disdain for the president translates into absolute opposition to his nominees. Nearly 80 percent Trump’s nominees to the U.S. Court of Appeals, for example, received a “well qualified” rating from the American Bar Association, higher than the previous four presidents of both parties. And yet, these nominees have received an average of 33 negative votes in the Senate, compared to only 11 for President Barack Obama’s “well qualified” nominees, six for President George W. Bush’s, and just five for President Bill Clinton’s.
Another, more profound explanation is that the conflict over judicial appointments is really a conflict over judicial power. How much power should unelected, life-tenured judges have in our system of government?
Judges have two basic tasks. First they interpret, and then they apply written law—such as statutes or the Constitution—to decide individual cases. You can tell what kind of judge someone is by whether he or she interprets and applies the law impartially or politically. An impartial judge deliberately takes his own priorities or views out of the equation; a political judge deliberately inserts them.
So the conflict over a nominee like Kavanaugh is a conflict over the kind of judge America needs on the bench. Do we need impartial judges who let the American people and those they elect make the law, or do we need judges who make the law for them?
If the Constitution is the rulebook for government, do judges have to follow it too or can they manipulate the rules and do as they please?
Our system of government comes by design, not by accident, and it is designed with an impartial judiciary in mind. That’s the only way that our system of government works the way it is supposed to. It also means that certain political forces are not going to get what they want.
But rather than persuade the American people to adopt their political agenda, the left has tried to change the system by installing political judges.
America’s founders designed the judiciary to be the weakest of the three branches, yet the steady appointment of political judges has transformed it into the most powerful branch. Political judges have been, to use Thomas Jefferson’s description more than two centuries ago, twisting and shaping the Constitution into any form they choose.
In 1937, about the time this trend toward a more political judiciary began, Justice George Sutherland warned about judges who appear to be interpreting the law but are really amending it “in the guise of interpretation.”
That’s exactly what is happening today. Those who can’t get the American people to support their political agenda want the kind of judges who will force it upon the American people.
There’s a lot at stake in the kind of judges a president appoints. Impartial judges let the people run the country; political judges do it for them.
Kavanaugh’s opponents are doing everything to defeat his nomination for the very reason America needs him on the Supreme Court: He is an impartial judge, not a political one.
If there are protests, one would assume it would be Americans demanding that the Supreme Court should return to its long-lost role as a bulwark against tyranny. Instead, we have have morons dressed up like characters on A Handmaid’s Tale, not having any clue what the real problems are.