Nearly destroyed if not made forever cynical, the junior U.S. Senator from Montana James “Jeff” Smith, somehow extracts a measure of redemption for the U.S. Senate in Frank Capra’s classic Mr. Smith Goes to Washington (1939, starring Jimmy Stewart). The young, naïve man heads to Washington D.C. only to discover the place isn‘t what you expect to find upon completing Government 101. Yet in his story, we find a call to act.
With all the sound, spectacle, rage and hyperbole on display, it is surprising that as I type this, half the country is not in armed conflict in the streets, while the other half are not waiting at an airport gate on their way to becoming expats in the Caribbean somewhere. Come on people.
This media event (clown show?), the Brett Kavanaugh confirmation hearing, tailored made for the 24 hour news cycle and opinion mills at MSNBC, CCN and Fox News, was never about justice for Dr. Ford. Nor about whether Judge Kavanaugh in fact sexually assaulted her or anyone else. It was about one thing, and one thing alone – hardball politics. The hardest of hardball politics, played out in the U.S. Senate in front of a worldwide audience. The Democrats versus the Republicans. The naïve and idealistic versus the grizzled and cynical.
Some context is helpful. For the last sixty years the Supreme Court has reliably leaned leftward on social issues, to the joy of liberals and progressives alike. Conservatives and the far right meanwhile have been lamenting a court they view as increasingly untethered to core American values.
The importance of this “lean“ has grown in recent years, as an increasing number of social issue cases have made their way to the Court. The “lean“ can play a vital role in the decision in each of these cases. Each confirmation hearing is now potentially a fight to the political death as Senators debate what are lifetime appointments to the Court.
With Kavanaugh‘s confirmation, though, the political stakes were even higher than normal. His nomination was the second by Trump, with the real chance of there being a third before he leaves office. Only Ronald Reagan would have more (four). With the Republicans now seeing a potentially right leaning Supreme Court for the first time in decades, the Democrats sought to prevent that happening, whatever the cost.
The starring actors in this now too familiar show: the Republican majority, seeking one of the jewels in the presidential crown, the placing of a justice on the Supreme Court, and the Democratic minority, seeking to block the nominees’ confirmation and thus defend against the court potentially leaning not left but more centrist or right.
The supporting actors are the unthinking people across the political spectrum, and the cable news shows. The people provide an endless stream of sound and video bites to the cable shows, who for their part effectively work to fan the rhetorical flames as the Senate burns. Their viewers just dig ever deeper into their echo chamber foxholes.
In the case of the Kavanaugh hearing, Senators shamelessly played off both, casting themselves as defenders of women everywhere, defenders of America against an increasingly progressive left, or as reliable robots repeating the same talking points over and again.
It’s Not What You Want it to Be
Many people want to believe the hearing was about whether Justice Kavanaugh was judicially qualified. Or about whether Dr. Ford was a credible accuser. It was not about either. Nor was it the reasoned and needed public discussion of sexual assault and how to reduce its occurrence, or how to provide effective support for its victims.
It was instead a horrifying show during which we watched the U.S. Senate allow unreasoned politics from the ends of the spectrum to drive out the remaining evidence of sanity, responsibility and decorum from its chamber.
In another setting the show might be straight out of Shakespeare’s Macbeth – “It is a tale. Told by an idiot, full of sound and fury, signifying nothing.” But in this setting, it is instead, ‘a tale told by idiots, full of sound and fury, and signifying the mortal wounding of the U.S. Senate as the senior chamber of our representative government’.
Our founding fathers expected hot heads in the House of Representatives. They foresaw the messiness that can come with direct elections. They expected its members to put forth crazy ideas, seek unfettered and immediate change. The House might provide the nudge toward change, but the Senate‘s job was in part to ensure that any changes being made bring good without avoidable or unlawful harm. They designed the Senate to be an anchor of thoughtfulness for our nation. One of the founding fathers described the Senate as the ‘saucer into which we pour our tea to cool.’ It was to counterbalance the more raw, raucous and unstable House of Representatives by ensuring our country at all times moved cautiously, thoughtfully into the future.
Our world is often complex, confusing and scary. The understandable desire for simple and quick solutions has often to find solace instead through conversations with those that know more than we do, and upon whom we need to rely on for reasoned and thoughtful guidance and leadership. Among those the founders intended to play the role of the latter were U.S. senators. But those members of our elected government have lost sight of their true role, and turned their focus instead to only one thing – playing to their base and getting re-elected.
A quick review of recent Supreme Court confirmation hearings, including Brett Kavanaugh’s, is illustrative of the larger issue with our politics.
Let the Show Begin
In 2013, the Republicans launch episode 1 by methodically holding up President Obama’s appointees to the lower federal trial and appeals courts. Frustrated by the delays, the Democrats elect to go “nuclear,” changing the rules in the Senate to require only 51 votes instead of 60 to confirm federal lower court nominees. That change allowed confirmation of many of Obama’s nominees despite objections by Republicans. But in doing so, a guardrail intended to help ensure some measure of bi-partisanship in the nominating of federal court judges fell away.
Some pointed out that the change would open the way for the next logical step – the rule on Supreme Court nominees. Republicans warned the Democrats they might one day pay a price for their unprecedented move. But for the time, the 60 vote rule for Supreme Court nominees remained in place.
In 2016, episode 2 airs. The death of conservative Justice Antonin Scalia had created a vacancy on the court. By selecting a qualified, centrist judge, Obama hoped to assemble a coalition of both Democratic and Republican senators large enough to get 60 votes and thus approval of his nominee. It was within this context that Obama nominated Merrick Garland to fill Scalia’s seat.
By most accounts Merrick Garland was both a qualified, and centrist judge. In an openly politically move, and using the flawed logic that Obama was nearing the end of his final term, the Republicans blocked a vote on his nomination. As a result, when Obama left office, his nomination of Merrick Garland was in the final stages of evaporating into the nothingness that so often is Washington, D.C.
The calendar moves steadily forward. It is 2017 and episode 3 airs. New president Donald Trump nominates Neil Gorsuch for the same vacancy that President Obama had nominated Merrick Garland. Now, the Democrats return the favor, working to block a vote on Gorsuch just as the Republicans did on Garland. My how the table had turned.
This time, it was the Republicans who went “nuclear.” They change the senate rules on Supreme Court nominees to require just 51 votes for confirmation. With that scorched earth move, they make the Gorsuch confirmation possible. But in the wake of his confirmation lay in smoking ruins another bipartisanship guard rail.
Thus was the stage set for 2018, and episode 4, the season’s finale: Brett Kavanaugh’s nomination. Having gone nuclear with Gorsuch, the Republicans needed only 51 votes to secure his confirmation. With a 51-49 majority in the senate (and the vote of the Vice President should they need it) the confirmation was secure. The Democrat‘s only play was an ugly spectacle aimed at emotion, anger and rage. Enter Dr. Ford with her allegation of sexual assault. The rest is now history. Had the rule requiring 60 votes remained intact, it is unlikely his nomination would have succeeded. The purpose of the rule was to force presidents to nominate jurists who could draw at least some support from across the aisle. The founding fathers did their level best. We have, in some minds, become a lot smarter. Or not.
Rise of the Republicrat
With the Mitch, Chuck and Donald show now mercifully ending, some of us now look around and wonder, what in the hell has happened to our Senate? Part of the answer is that we have abetted the slow suicide of senate honor, character and duty by our short memory. For every “disgusting action” by one side, the other has committed the same crime, we‘ve just chosen, or worse allowed ourselves to forget.
The House of Representatives and Senate share a common failure to do their job. It is their abdication of their legislative duty that created what has become the Circus of the Court. The founders did not intend to make the Supreme Court a quasi-legislative body. It is Congress’ abdication that is making that a reality. The Supreme Court now bears
the full burden of the failures of Congress.
Antonin Scalia said ‘it is doubtful that we want, or perhaps even survive 9 individuals, educated at elite law schools and insulated from daily life in America, making laws that affect each of in our daily lives.’ How prescient his words.
It‘s been said “what goes around comes around.” I rather think It is time to stop merry-go-round. The time has come for those in the center to join ranks, Republicans and Democrats alike, and allow the best of both parties to lead and govern our great republic. It is time to lead, it is time to govern. Let the critical center find its voice. Lindsey Graham was spot on.
The Repentant R is now also a Republicrat.