America, according to Kennedy and those who vibrated to his bombast, was living on the lip of a volcano, with no secure civil rights. At least none that could withstand the ascendancy to the court of a man whose judicial philosophy resembled that of Justice Oliver Wendell Holmes, the progressives’ pinup who believed in vast judicial deference to majorities. So, Kennedy was asserting that an American majority was eager to extinguish American liberty.
Kennedy spoke just 288 days after he and 97 other senators voted 98-0 to confirm Antonin Scalia, Bork’s intellectual soulmate. Obviously the Bork episode was not about jurisprudence.
Four years after the Senate rejected Bork, it confirmed Clarence Thomas, 52 to 48, after weighing last-minute accusations of past sexual misbehavior — talk, not touching. The next two justices, Ruth Bader Ginsburg and Stephen G. Breyer, were confirmed with just three and nine opposing votes, respectively. Since then, however, the five justices confirmed (John G. Roberts Jr., Samuel A. Alito Jr., Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch) have had between 22 and 45 votes against them.
All were eminently qualified, but none were more so than Merrick Garland, the shabby treatment of whom was supposedly justified by a terrible and profoundly anti-constitutional idea that fuels today’s conflagration. It is the idea that the selection of justices should be tethered to our never-ending political campaigns so that the court will reflect voters’ shifting constitutional preferences.
Hence the confirmation process has followed the crumbling, descending path the rest of American politics has taken into the depths of cynicism, faux outrage and pandering to the parties’ hysterical bases. The utter emptiness of everything is an intellectual vacuum into which have flooded histrionics.
Next week, the Senate committee might try to discover some pertinent things — when and where the high school party occurred, whether it was unusual, whether all those present were minors. If the committee cannot make such determinations, assisted by Ford’s timely testimony, this will be instructive and probably dispositive. Her courage in exposing herself to examination and opprobrium has earned her a respectful hearing. However, her rejection of multiple hearing options, and her insistence on prolongations that serve her party’s agenda, have earned her quizzical scrutiny.
This debacle du jour dramatizes how the court’s stature is hostage to the degrading confirmation process, which has become a maelstrom of insincerities. The justices who emerge from it suffer subtractions from the dignity that gives their decisions momentum for respect. For 64 years, the infusion of prestige the court received from its desegregation rulings has been remarkably durable, despite decisions — e.g., Roe v. Wade and Bush v. Gore — that were made during, and that intensified, turbulence in public sentiment. But prestige is perishable, and senatorial ludicrousness can infect all who come into contact with it.
In recent decades, all civilian institutions important to national governance — Congress, the presidency, the parties, the bureaucracy, the media — have, by their ignorance and arrogance, earned the disdain that now engulfs them. Yet although the court regularly renders controversial decisions on matters about which the country is either deeply ambivalent (e.g., same-sex marriage) or hotly divided (e.g., abortion), its decisions are usually broadly accepted as ratifying norms that must be, and soon are, accepted.
The judiciary is (Alexander Hamilton, Federalist 78) “the least dangerous” branch because, having “no influence over either the sword or the purse,” it has “neither force nor will, but merely judgment.” Its judgments, however, can be uniquely powerful because they rely entirely on the moral authority of conscientious reasoning explained in writing. Next week, the committee’s senators, most of whom are fungible and easily replaceable, should try to minimize the damage their theatrics do to the government’s least damaged institution.