DANIEL VAUGHAN: The Democrats’ problem isn’t Kavanaugh – it’s Republicans

September 17, 2018

There’s going to be a million and one hot takes written today about Brett Kavanaugh and The Washington Post story in which Christine Blasey Ford, now a professor at Palo Alto University, accuses him of sexual assault.

But the problem isn’t the accusation. The once-anonymous accuser is no longer faceless, and we aren’t dealing with the unreliability of ever-changing information.

The overarching problem is that we’re here at all.

In the Post story, Ford’s husband says that he was concerned about the event because “[Kavanaugh] might one day be nominated to the Supreme Court.” And when it became clear Kavanaugh was a frontrunner on Trump’s list in the summer, they decided to contact Democrats in Congress.

In short, Mr. Ford said the event matters not because sexual assault is terrible in itself, but rather, because the Supreme Court is in play.

And the reason people — especially on the left — are panicking about the Supreme Court is that they’re looking to lose a majority on the court for the next generation.

If we were dealing with a Supreme Court that adequately aligned with its historically planned role, the personal histories of the justices sitting on the high court wouldn’t matter as much. But that’s not the case — and we have two main events from the 20th century to blame for this new reality: first, the wholesale invention of rights surrounding cases like Roe vs. Wade; and second, the slandering of Judge Robert Bork.

When liberals and progressives adopted living constitutionalism as their primary judicial philosophy, it allowed the Supreme Court to start legislating directly from the bench. The emphasis from the Court shifted from interpreting laws and keeping the executive and legislative branches within the confines of the Constitution, to becoming, effectively, a second legislative branch.

Legislating is an inherently political process, and the Supreme Court was never designed to join politics. Alexander Hamilton explicitly laid this out in Federalist 78, writing:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

The courts are only supposed to interpret laws, not create them out of thin air. Roe vs. Wade was a primary driver in favor of this movement, as the Supreme Court concocted the abortion right from thin air.

But this isn’t just a conservative critique of Roe; it’s a liberal one too.

Justice Ruth Bader Ginsburg referred to Roe as “heavy-handed judicial intervention.” Lawrence Tribe, a far-left Harvard professor, said of Roe: “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

And once living constitutionalism cracked open the door for the Supreme Court to start inventing rights nowhere found in the Constitution, it dramatically shifted the level of power the Supreme Court held. The Founder’s vision of a Court that limited itself to interpreting the law vanished.

All of that history brings us to the current moment, where every single nominee to the Supreme Court — especially if he or she is conservative — is going to get attacked with every dirty trick in the book. They’re getting attacked, smeared, and blasting by Democrats because the Supreme Court holds a power it was never meant to carry.

The second problem here is that the left wants the Supreme Court to hold this power because, for most of the 20th century, the court did whatever the Democrats wanted. And when the court didn’t do what they wanted, they simply threatened it with court packing.

Restoring the Supreme Court to its original position in our Constitutional order is the only way to end these pointless charades.

But I sadly don’t see that happening any time soon. Alas, each time we hold a nomination process, the fight gets dirtier and dirtier.

Let’s ignore the Kavanaugh story for a moment and face the simple facts Democrats are presenting: There is no one, not one single person, on Trump’s list or anyone who could get added to that list, that Democrats would support for the Supreme Court. They aren’t interested in giving advice and consent; they’re only interested in delaying or destroying any nominee.

It’s happened with every candidate on the right since Bork (there’s a reason they were fine with Kennedy).

Justice Clarence Thomas didn’t face the Anita Hill accusations until after his hearing process was complete. Democrats used an 11th-hour witness to attack him when he couldn’t defend himself anymore.

Justice John Roberts faced accusations that he was against the “little man,” and was openly questioned and attacked for his Catholic faith. Speaking of attacking people of faith, Democrats blasted Judges William Pryor and Amy Cohen Barrett for their Christian faith, as well.

Justice Samuel Alito faced questioning from senators over organizations he was a member of, with Democrats trying to paint him as a racist. And more recently, Justice Neil Gorsuch met an 11th-hour attack when he was openly attacked after his hearings and falsely accused of plagiarism.

Brett Kavanaugh may have done what he’s accused of, and he may not have. Based on the statement of one woman who isn’t under oath in another 11th-hour attack, I’d say it’s natural to hold skepticism — especially when every other person involved with Kavanaugh rejects the entirety of her accusations.

That said, the truth of the accusations don’t matter to Democrats. If Kavanaugh’s nomination is withdrawn, they’ll chuck Christine Blasey Ford to the ash heap of history.

They’re only out to stop or smear any conservative on Trump’s list. And if Kavanaugh is replaced with someone else, they’ll do the same to any other candidate.

It’s their new normal.

And until we restore the Supreme Court to its proper role, it’s only going to get worse.

If you’re a Republican, the choice is clear: Either ram Kavanaugh through with a vote, or get another nominee. Delaying past midterms simply isn’t an option.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.