Asked by Shannon Bream about the upcoming fight over the nomination of Brett Kavanaugh to the Supreme Court, Senator Ben Sasse of Nebraska delivered, as is his habit, a brief seminar on civics: “A judge’s job is not to be making social policy for America,” he said. “A judge’s job is to defend the Constitution, to defend the rights of individuals, and ultimately to rule on what the law
Asked by Shannon Bream about the upcoming fight over the nomination of Brett Kavanaugh to the Supreme Court, Senator Ben Sasse of Nebraska delivered, as is his habit, a brief seminar on civics: “A judge’s job is not to be making social policy for America,” he said. “A judge’s job is to defend the Constitution, to defend the rights of individuals, and ultimately to rule on what the law says—not what they wish the law would be.” Senator Sasse’s unfancy eloquence on these questions is one reason there are those of us who would be very pleased if it should come to pass that he were in a position to nominate Supreme Court justices as well as defend them on Fox News.
The left is in a panic. Judge Kavanaugh, who currently serves on the D. C. Court of Appeals, is a Catholic and a member of the Federalist Society, where he led the Religious Liberties Practice Group. His religious convictions surely will come under scrutiny—the Democratic party may have left the white robes, burning crosses, and pointy hats behind, but it has kept its ancestral anti-Catholic bigotry—if only because Democrats know that their basic coalition is held together mainly by the promise of government checks and a keen interest in securing sexual convenience through the surgical dismemberment of unborn children.
But what Judge Kavanaugh is going to be really hated for—and what’s coming is hatred, pure—is the thing that should be least objectionable about him: He is what we now call a “constitutionalist,” meaning a judge who takes Senator Sasse’s advice and makes a reasonable effort to determine what the law actually says rather than insert himself into social debates as a freelance moral agent. Judge Kavanaugh’s critics implicitly embrace the judicial philosophy of President Trump’s political mentor, Roy Cohn: “Don’t tell me what the law says—tell me who the judge is.”
Senator Sasse argues that the protests at the Supreme Court represent a failure of American civics education: Protest at the White House, he says, or protest at Congress—those are the places that are supposed to be responsive to politics. The Supreme Court is supposed to be responsive to the law.
Supposed to. Learned ancients in black robes offering up tendentious interpretations of the foundational texts while acting as a national super-legislature: The Supreme Court in reality is only a few beards away from functioning in approximately the same way as Iran’s Guardian Council, which interprets Islamic law and applies it to political questions. Both bodies are vulnerable to outcome-oriented reasoning: Verdict first—on the Wonderland model—argument after.
That the Supreme Court is not only political but frankly partisan is obvious from the fact that there is almost never any question about the way Justices Ginsburg, Sotomayor, or Kagan will vote on any given question. Ruth Bader Ginsburg has, in her dotage, embraced her career as an open left-wing political crusader; Elena Kagan lied her way onto the Court and has proven herself a reliable political hack outdone only by Sonia Sotomayor, whose pugnacious playing to the progressive peanut gallery is both cheap and tedious. Justice Antonin Scalia sometimes surprised his liberal critics, e.g. by ruling against government prohibitions on flag-burning. Justice Scalia hated the flag-burners and said as much, but the law says what it says, and the Bill of Rights plainly protects political expression. Scalia understood his role, and his adherence to principle mystified progressives—which tells us a great deal about Scalia’s critics. Who are also Kavanaugh’s critics.
Our tripartite constitutional order is out of balance, and the fault lies principally with Congress. The presidency has become swollen and arrogant (and debased by risible pomp) but that has been made possible mainly by the indolence and cowardice of Congress, which for years has been offloading the bulk of its lawmaking responsibilities onto the executive branch, with the administrative state having become, in effect, the real government.
Congress has likewise too often ceded the field of recondite social questions to the more entrepreneurial courts and judges and then acted as though its hands were tied. This failure is rooted in a defect not of the American system but of the American character: The founding generation may have taken a reverential attitude toward George Washington, but its leaders understood the necessity of collective leadership, by which is meant the forging of consensus and the achievement of compromise among political tendencies with radically different values and policy preferences. It was not written in the stars that Jefferson, Madison, and Hamilton should be able to find a way to secure both liberty and order—that was the work of men. Our degraded politics can be summed up by Barack Obama’s two-word philosophy: “I won.”
“Me, too,” Senator Mitch McConnell answered, which is why Neil Gorsuch, rather than Merrick Garland, was confirmed to the Court last year. “And so did I,” President Trump might very well have tweeted. Democrats are a bit less enthusiastic about the “I won” standard today than they were a few years ago. But they remain monomaniacally focused on the person of the president and on presidential power, which they apparently consider the only thing worth having.
The president’s power to nominate a new justice to the Supreme Court should not present an existential crisis to the republic. And, in this case, it doesn’t: Donald Trump is a capricious, vain, and often foolish man, but he has so far cleaved to his list of highly-qualified candidates for the highest court, one of the few unqualified successes of his presidency. President Trump is entirely capable of naming an unqualified kook to the Supreme Court, but he hasn’t done that. He has chosen a well-qualified, experienced federal judge who believes that the Constitution says what it says and means what it says.
That the Left believes this development to be apocalyptic—and there is some sincerity here, among all the histrionics—is instructive. Many conservatives held their noses in the voting booth last time around, hoping to make of Trump a prophylactic keeping Mrs.
