Legislative flaws force SCOTUS nominee fights

There is a deeper reason for the hyperpartisanship that permeates the hearings on Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court than the rudeness that now seems to be common.

In my view, it results from the eclipse of the Congress as an institution to determine public policy in America.

It is clear from the Constitution that Congress was intended to be the lead institution in the government. The president was then tasked with executing those laws. The Supreme Court was a distant third, responsible for interpreting the laws and the Constitution only when necessary. This makes sense in a society that was intended to be a representative democracy.

So when did things go wrong? I trace it back to the failure of Congress in post-World War II to grapple with the long-overdue issues of civil rights. Because of the stranglehold that the southern Democrats (largely but not exclusively segregationists) had on the Congress, civil rights legislation made little progress. Although there were presidential orders desegregating the armed forces, it was not until the Supreme Court in Brown v. Board of Education broke the logjam that society made forward progress.

After a brief spasm of progress in the early 1960s, social change largely occurred in the courts. From the abortion rights decision in Roe to the recent samesex marriage decision in Obergefell, key societal issues are now committed to the courts.

For good or for bad, no one takes Congress seriously as the principal engine to address key issues in society.

So that leaves legislators with little left except judicial hearings. Not only do they have little else to demonstrate that they are still relevant, this is the only way they have input into the resolution of important societal problems. As a result, the hearings become less and less about the particular persons nominated and devolve into policy debates that should be resolved elsewhere.

So the hearings are going to be absolutely abysmal from both sides. Any actual discussion of Judge Kavanaugh’s qualifications will be lost in the fracas. Even as a political junkie, I find the hearings repulsive and unwatchable.

I would like to offer some sage solution, but I am fresh out. What I can say is that under historical circumstances, the nomination of an eminently qualified person would pass with little fanfare. The judicial nominating process is broken, but only because the legislative process is itself broken. As a voter, I find this a tragic failure of the democratic process.