The bitter partisan battle over Brett Kavanaugh nomination to the Supreme Court ended with a narrow Senate vote making him the latest Supreme Court justice.
His confirmation came despite sexual assault allegations and a display of anger during the Senate Judiciary Committee hearing. The 50-48 vote came almost entirely along party line proving that partisanship trumps truth and justice.
The state of American politics is deplorable as did this process showed, but there is a structural issue that was ignored for the most part in the national debate over Kavanaugh’s nomination. that further exacerbated the negative effects of a poisonous political atmosphere.
Americans are blind to the destructive structural problem plaguing the US judiciary. The long-held belief that judges are objective and independent is not entirely accurate and definitely not grounded in reality.
Judge Kavanagh’s confirmation process revealed the severity of judges fallibility, thus illuminating the fissures in the court system, and exposing him as a political ideologue. The contentious Senate hearings highlighted the accepted underlying tension between Republicans and Democrats.
Each party is interested in advancing their nominee through the process to guarantee a representative on the bench who agrees with their political doctrine. As a result, the partisan bickering co-opts the objectivity of the nominee turning him/her into a political tool. Kavanaugh’s hearing was an extreme example of how the political views of the nominee is the only qualification.
How can democracy work if the branch of government that is charged with striking a balance between the Executive and Legislative, and keeping them in check, is itself a tool advancing a political ideology?Walid Jawad
The Supreme Court
The composition of the nine justices on the Supreme Court is critical to the character of the US. Legal decisions decided by the Supreme Court become the law of the land and affects how Americans live their lives.
Ruling on gun rights and abortions, segregation and voting rights are some of the issues impacting Americans immediately and profoundly. For decades the justices were evenly divided between liberals and conservatives with Justice Anthony Kennedy casting an often swing vote. Although the court strives to pass unanimous decisions 9-0, numerous consequential rulings end with a 5-4 split.
The critical nomination of Kavanaugh lies in the fact that he is replacing the swing vote of the retired Kennedy. Kavanaugh being a conservative will likely rule in favor of Republican supported positions.
Now that Kavanaugh has been voted in on Saturday the country will move toward conservatism for generations to come. Abortion rights, Roe v. Wade, being one of the most divisive issues the nation is anticipating a challenge to. Kavanaugh would be anticipated to seal its reversal denying women the right to choose.
The repeated historical 5-4 decision split among the nine justices on the Supreme Court can be analyzed to show the complexity of their positions. The courts own scorecard shows the ruling of individual justices in different categories including First Amendment, Federalism, Economics and others.
But there is an overriding factor that explains the split strongly correlated with ideological affiliation. Because Kavanaugh was nominated by President Trump, the Democrats on the Senate Judiciary Committee grilled the nominee to glean the depth of his commitment to conservative causes.
The contentious hearing process went beyond Kavanaugh’s ideological leaning to his character, fitness and whether he has the temperament required to sit on the bench after sexual accusations by Dr. Christine Blasey Ford.
The confirmation process quickly turned into a he-said-she-said debate where the question observers were faced with was “who do I believe more, Dr. Ford or Judge Kavanaugh?” This debate, ensuing testimony by both before the Senate committee, and the expanded FBI background check reframed the process to be an extension of the #MeToo movement.
For the record, I do believe Dr. Ford’s account and extend my admiration to her courage to recount her horrifying experience before the nation. True, there is a small possibility her memory mistook Kavanaugh for the perpetrator. There has not been corroborating accounts of the incident as recited by Dr. Ford.
For that small doubt, we are not justifying casting judgment on Kavanaugh as a sexual predator. But it was his words in defense of his reputation is what should have given Senators and supporters pause.
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“This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. And millions of dollars in money from outside left-wing opposition groups”, he angrily lashed out directing his assault on the Democrats on the committee without offering proof.
Coverage of the nomination process myopically dwelled on details of the sexual allegation. As a result, people overlooked the zealot partisan entrenched position and how it informed people’s conclusions.
Watching the nomination process, one heard an “us vs. them” debate not along gender lines, but along political party affiliation. Most Republican, regardless of gender, showed different levels of support for Kavanaugh while Democrats stood by Dr. Ford.
The debate hardly included his political animosity toward the Democrats. Kavanaugh’s deeply rooted political conviction and ideological belief should have cost him the nomination. His tirade against the Democrats goes against the presumed allegiances to the law.
In addition to the Supreme Court deciding how laws should be interpreted and applied they decide political outcomes. The Supreme Court has decided the presidency in Bush vs. Gore in their recount battle giving the White House to George W. Bush.
How can democracy work if the branch of government that is charged with striking a balance between the Executive and Legislative, and keeping them in check, is itself a tool advancing a political ideology?
The justices have the final say on matters of great consequences without Americans having the ability to change course as they are appointed for life. This is a far cry from the electorates ability to vote in nominees who are appealing to them, or vote out underperforming ones when reelections come around.
Americans are typically dissatisfied with their elected officials leading to a political seesaw from one election cycle to the next. The presidency consistently alternates between the Republicans and Democrats due to that dissatisfaction.
In the case of the Supreme Court, voters are not offered a process by which they can remove a justice for underperforming, or for lack of touch with the greater society. The immunity the justices enjoy combined with the power they hold often dramatically changes the whole of society; taxes, environment, business, etc.
American voters are not as partisan as many like to believe. In fact, candidates craft their messages to include the greatest number of voters. When messaging has to be divisive, candidates are careful not to alienate significant voting blocks.
Therefore, there are more similarities between candidates’ platforms trying to be as close to the center as possible. The political label, Republican vs. Democrat, becoming the most important defining aspect of a race. Winning public office is the ultimate goal regardless of the strategy or tactics.
Senator Joe Manchin, the only Democrat who voted for Kavanaugh, betrayed his own announced position on Kavanaugh, “I have reservations about this vote given the serious accusations against Judge Kavanaugh and the temperament he displayed in the hearing.”
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Manchin is fighting a tough reelection race in West Virginia; a deep red state Trump won in a landslide over Hillary Clinton in the 2016 elections. Again, winning by any means necessary often means betraying personally held beliefs. In this case, even betraying future generations by voting for a candidate whom he thinks is not good for the nation. Politics is a dirty game.
Judges should be cut from a different cloth. After all, they decide on matters affecting our way of life. A new litmus test should be applied to judges nominated to the highest court of the land.
Any person who is or was politically affiliated with a political party shouldn’t be considered. Showing bias toward specific ideology with unrelenting zeal should be ground for automatic disqualification.
Walid Jawad is a former Senior Policy Analyst at U.S. Department of State and a former Washington, DC correspondent. He covered American politics for a number of TV outlets since 1997. Walid holds an undergraduate degree (B.A) in Decision Science and Management Information Systems and a Masters in Conflict Analysis and Resolution. You can follow him @walidaj.