Supreme Circus
We are currently at the tail end of another contentious hearing in front of the Senate Judiciary Committee to cross examine a Supreme Court nominee that had been characterized as a circus. Senator Graham has correctly pointed out that such a characterization maligns the circus. Whatever it’s called, it is undignified, a kabuki and a waste of time. Far from democracy at its finest.
Why is the process of “Advice and Consent” for members of the Court so contentious? Why do those in the opposition party feel compelled to put on a fighting show to impress their base voters? Why is the composition of the Court so important?
The answer is that a paralyzed political process fails to deal with issues. In some cases, disputes unresolved by the legislative process are thrown into the court system. In other cases, Congress passes legislation that is open season for regulatory rule making that amounts to back door legislation. In both instances, partisans try to achieve in court what they could not achieve through the democratic process.
In the case of the left, they have a shinning vision of a progressive nirvana. The death penalty is abolished. Gun ownership is severely restricted or banned. Abortion is available to all, at no cost and at any stage of pregnancy. Welfare is a right. Medicare for all is here! The only impediment is the deplorable voters won’t give them complete control of the legislative and executive branches. The solution is to get there through the courts. We will all embrace the nirvana once we experience it. Sweden is happy and so will we be.
In the case of the right, the courts are the last line of defense against the Nanny State. Regulations (and Executive Orders) sneaking into every area of daily existence can be found to be unconstitutional or unsupported by the enabling legislation. The American Way is being eaten away before our eyes. Thumbs must be shoved into holes in the dyke.
The obvious culprit is Congress. If members would show the courage to pass legislation that might stir opposition among members of their party’s base; if they would make an effort to find common ground; if they would take the time to research issues thoroughly enough to pass legislation that didn’t simply authorize regulatory overreach, governance would improve. The courts would be relegated to their original function.
The other culprit is the courts themselves. Many judges relish their role as unelected legislators. Take Trump’s infamous travel ban. When it came out, the ACLU rushed to a thoroughly shopped judge in Hawaii to overturn it. Two modifications to address his objections were also shot down. The Ninth Circuit, a judicial temple of left wing advocacy, of course approved. There was never any doubt that the Supreme Court would uphold the order. The legislation authorizing the President to act was clear, and it had been used several times in the past without challenge. The Hawaiian judge’s grounds for overturning the order were the Presidents rhetoric as a candidate. The whole process was Kabuki. The appropriate response from a judge presented with an opportunity to legislate should be to say NO! His or her opinion should be a demand that elected officials resolve the issue.
The answer to the questions above is that our democratic process is sick and needs treatment. The Supreme Circus is a symptom of the disease and a warning. The less news we hear about the Supreme Court, the better.
