Podcast: Play in new window | Download
Subscribe: RSS
Judge Kavanaugh becomes Justice Kavanaugh and the political left attacks the legitimacy of the Supreme Court and Constitution
I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.
After unprecedented political hurricane, Judge Kavanaugh becomes Justice Kavanaugh
After an unprecedented political hurricane, Judge Brett Kavanaugh became the 114th individual in the entire history of the United States of America to be confirmed as a justice of the United States Supreme Court. He was sworn in as the 114th justice in a ceremony in Washington DC on Saturday evening. Earlier in that same day, he was confirmed by a vote of the United States Senate of 50 to 48. Now, you’re looking at a very close margin, just a 50 to 48 margin, but what’s most important is given the current rules of the United States Senate, this is quite enough for the Senate to have exercised its constitutional responsibility of advise and consent to the president’s judicial nominations.
The past several weeks have been by twist and turns a unique story in American politics, a story that has revealed, as if we needed more revelation, of the deep ideological political, moral, and cultural divide in the United States. If anything, on the other side of the vote and the swearing in of Justice Kavanaugh on Saturday night, that chasm is now wider. It’s even more undeniable, but it is also clear that we are watching America changing before our eyes and it is also very important that we recognize that every single appointment to the United States Supreme Court is of tremendous importance to the nature and destiny of this nation and to the survival of our constitutional order, so when you’re looking at this hurricane, we need to understand it was not by any means much to do about nothing. It has to do with something that is very important to our constitutional order, but there have been some very interesting lessons learned just over the last couple of days.
First, look at the vote itself, 50 to 48. That was made possible by 50 senators, president of the chamber voting for the confirmation of Justice Kavanaugh, but it was also complicated by the fact that one republican was not present and another republican present voted present. She didn’t vote against, she merely voted present.
Now, if this sounds complicated, it is, but this is a part of the rules of the Senate. Lisa Murkowski, a republican senator from Alaska, had indicated on Friday that she would vote against Judge Kavanaugh. That complicated the math, and it was further complicated by the fact that one of the republican senators who was a definite yes vote for Judge Kavanaugh, that is Senator Steve Danes of Montana, was not present in the chamber on Saturday because he was present at the wedding of his daughter back in Montana. But then given the way the Senate works, there was what’s called a Senate pairing, and that came as Senator Murkowski agreed that she would not vote against Judge Kavanaugh, but she would not vote for him. She would instead vote present. Present was not a vote that counted against Judge Kavanaugh.
That then established 48 democratic senators voting against Judge Kavanaugh, one democratic senator, Joe Manchin of West Virginia voting for him. That gave the number of 50 versus 48, which again is enough, but it’s really interesting to hear so many on the political left decrying the politicization of the courts because arguably over American history, it has been the left that is primarily responsible for making certain that the court has been politicized by assigning to the court or appealing to the court or taking to the court the issues that congress itself should handle through the normal legislative process.
That points especially to so many of the most hot button moral issues that the Senate and the House together would not dare to deal with on behalf of the American people, and so those who have been pressing for the legalization of abortion, for the legalization of same sex marriage, for so many other issues, they have gone repeatedly to the courts.
Then, it was also Senator Harry Reed, the then democratic majority leader of the Senate, who frustrated with the fact that republicans were blocking so many of President Obama’s judicial nominees, he changed the rules of the Senate, removing the filibuster for federal judicial confirmations. Now, the democrats, when they took that move, stopped short of the Supreme Court, but that then set up republicans under now majority leader Mitch McConnell to take that one step further.
Now, as you’re looking at this, there are charges and counter charges. Who’s most responsible for the politicization of the court? But there’s a bit of very important political historical background here that Christians need to keep in mind. We understand that in a sinful world, the political process is never less than political. That’s simply, as we might say, baked into the cake.
So, politics has been a matter of supreme importance at the Supreme Court going all the way back to the earliest days of the court. Indeed, you could agree that it was the period under the third president of the United States, Thomas Jefferson, that saw the Supreme Court first becoming overtly politicized under then Chief Justice John Marshall.
That set up a series of conflicts between presidents and the Supreme Court that was also very apparent under the presidency of Andrew Jackson. At one point, the court under still Chief Justice John Marshall, had ruled a move by the president unconstitutional. President Jackson then responded or at least history records he was said to respond, “Let the Supreme Court then enforce this. The Supreme Court has no truce.”
As you’re looking at the great long tradition of the Supreme Court and constitutional interpretation going back to the founding era, it’s really clear that much of the business of the court had to do with the interpretation of statutes rather than the constitution, and also with the relationship of the three different branches of government. There were huge arguments about the extent of the powers of the federal government. That set up a controversy that was settled only in the sense that it was settled constitutionally by the Civil War in the middle of the 19th century.
But it’s also really clear that even in the earliest days of the republic, there were arguments about the limits of the power the federal government setting up some of the debates that are now hauntingly familiar to those observing the court in the 21st century. But as you go back to the late 19th and the early 20th centuries, especially in the early decades of the 20th century, there was a huge shift on the court towards what is called the philosophy of pragmatism. Pragmatism marked so many of the justices. Especially in the period before the second World War and continuing even afterwards, pragmatism sought to be bend the propositions and even the texts and sentences of the constitution towards what a majority of the justices at any given time thought was in the best national interest.
Thus, you had people like Oliver Wendell Holmes and a succession of other very famous justices who began to bring their own insights to the court and those insights and arguments often exhibited under the context of pragmatism began to supplant the words, the sentences, the grammar, and the syntax of the constitution itself.
But it wasn’t just justices of the Supreme Court. Presidents of the United States followed similar reasoning. We’ve mentioned before that one of the seminal turning points in the history of the court was the constitutional interpretation of President Woodrow Wilson, both during the years that he was president and also in the years previous when he was the president of Princeton University and there taught political science and American history.
Wilson became a great exponent of a living constitution, the idea that the constitution had to grow with the people, but here’s what’s interesting. Most of that growth, as it was characterized by these proponents of the living constitution, didn’t come by the honest route of amending the constitution. It came by what I would describe as a fairly intellectually dishonest route. That is, suggesting that the meaning of the constitution now with the same words, the same sentences, the same grammar, would be different and could be different than the meaning of the constitution when the constitution itself was ratified.
That pragmatism gave way to progressivism in a majority of justices of the United States Supreme Court after the second World War, and the progressives began to go even further in the direction of the pragmatists. The progressives decided to take what they considered to be the data offered by such inputs as social science in order to bring those arguments into their constitutional interpretation. This was a step even beyond pragmatism, a step towards saying there are certain social goals we want to achieve. The constitution should be read or reread in order to get us to those goals.
One of the interesting things in retrospect is to look at how many arguments offered before the United States Supreme Court quite successfully, arguments that were then translated into majority opinions on leading decisions of the court offered arguments that are in essence more sociological than constitutional.
The great conservative pushback on the pragmatists first and progressives second understanding of the reading of the constitution by the court began in the 1960s, but it didn’t begin very effectively. It wasn’t even very effective all the way through the 1980s.
Republican presidents beginning with President Richard M. Nixon, first elected in 1968, sought to appoint what even Richard Nixon called strict constructionist judges. Those were judges who would actually rule according to the text of the constitution of the United States, but it turns out that Richard Nixon wasn’t really very effective in appointing strict constructionist justices or even lower court judges. It turns out that most other republicans weren’t that much more competent at doing the very same thing.
Now, one of the reasons behind this is that federal judges and especially justices of the United States Supreme Court tend to come from a very well-established legal and judicial elite. Furthermore, by the time you come to justices nominated the court, you’re talking about an elite within an elite within an elite. You’re talking about a very small pond from which these very important fish are drawn.
Republican after republican would be elected pledging to appoint strict constructionist judges in order to correct to the court, and yet those justices when appointed would turn out to be something other than strict constructionists. So, you look at a line of justices appointed by conservative republican presidents who turned out to be a part of the court’s so-called liberal or moderate wing.
There were some exceptions to this, most notably the nomination of William Rehnquist as an associate justice that was made by Richard Nixon, and then the elevation of Rehnquist to chief justice of the United States by Ronald Reagan.
Later, President Reagan would appoint some justices who turned out to be very much center left, not even center right, but he would also appoint Antonin Scalia, arguably the most effective and persuasive strict constructionist or originalist ever to sit on the United States Supreme Court.
By the time George W. Bush was elected president of the United States in the year 2000, conservatives had had enough of pledges about the nomination of strict constructionist judges. They wanted proof that justices who would be nominated by republicans would actually be strict constructionists. Thus, even going back to the first decade of the century, groups such as the Federalist Society committed to that very reading of the constitution began to grow in importance and influence.
Pragmatism, progressivism, and politics: How the trajectory of the Supreme Court led to this moment in American history
But then fast forward, not to 2000, not to 2008, but to 2016 when Donald Trump was running for the republican presidential nomination. In an effort to try to demonstrate to conservatives that he should be supported as their candidate, he indicated that he would go to the Federalist Society for a list of judges whom he might appoint as justices of the United States Supreme Court. It was a list of somewhere around 25 justices. It has been smaller and greater since then, but the point is that this list was to be made up of judges and legal scholars who had already demonstrated their commitment to originalism and strict constructionism.
Thus, then candidate Donald Trump, who had previously shown very little interest in the Supreme Court and had once even talked about nominating his sister, then a liberal federal judge, to the United States Supreme Court, it was then that Donald Trump indicated that he would follow exactly what he had said and he would nominate from that list and only from that list.
When President Trump was elected in November of 2016, he himself subsequent to that election made clear that he believed that the pledge that he had made concerning the Supreme Court was in large part the reason for his election, especially for conservative turnout.
The argument made by many evangelicals and others to support Donald Trump in the 2016 presidential election, a move that was completely out of sync with the kind of candidate that conservative evangelicals had ever supported before, the argument was made that the Supreme Court is virtually everything and winning the Supreme Court and actually changing the direction of the Supreme Court was so important that it would justify supporting and voting for a candidate unlike any candidate that evangelicals had supported before, especially given the moral and character issues that were then involved.
But what’s really important for the sake of history is to recognize that this past weekend is exactly what Donald Trump had promised when it comes to the Supreme Court of the United States, and it’s not only the nominations of Neil Gorsuch and Brett Kavanaugh to the court that are important. It’s not only the fact that they were both thoroughly vetted in their constitutional interpretation. It has to do also with the fact that both of them were completely supported by a White House that made very clear that they would not back off of these nominations even under intense political pressure.
Oddly enough, the confirmation of Judge Kavanaugh is due to one of the most unique partnerships in the history of modern American politics, the partnership between the republican president, Donald Trump, and Senator Mitch McConnell, the republican senator from Kentucky who was the majority leader of the United States Senate. It took the absolute determination of both men to see the Kavanaugh nomination through. Sources close to both men were very clear that they both understood that it would be a political battle royal to confirm any nominee who would come to the seat that had been occupied by Anthony Kennedy. The understanding was that the cultural left would fight it with everything and that it would take an equal determination in order to gain a successful confirmation process.
Just moments after the Senate voted to confirm Judge Kavanaugh, Robert Barnes, writing for the courts and law column of The Washington Post, began his report with these words: “The Kavanaugh court will be the ones conservatives have worked for decades to construct, experts say, with velocity, the only question about the Supreme Court’s advance to the right.”
Now, here’s where we need to understand that when The Washington Post in a column like this talks about the court advancing to the right, conservatives would come back and say, “No, it’s not advancing to the right. It is just returning the court to a mode of constitutional interpretation that was implied and required by the constitution when it was ratified. They’re not trying to take the court back to 1949,” they would argue, “They’re trying to take the court back to 1789.”
But for so many of the important cases that will come before the Supreme Court, the magic number isn’t five. Five would be a majority of justices for an opinion. It’s rather the number four. That is the number of justices required for the Supreme Court to agree to take a case, to issue what in the language of the court is called a writ of certiorari. In granting that writ, all it takes is four justices to say, “I think the Supreme Court should take this case.” The fact that Justice Kavanaugh is now in the court is likely to change the kinds of cases that will come before the court. It only takes again four. It doesn’t even take five.
But it’s really interesting to look to a newspaper like The Washington Post where the editorial board again after the vote on Saturday released an editorial entitled, “We Need Careful Restrained Justices on the Supreme Court.” That’s the title of the editorial, but a fair-minded person might ask, “Why exactly now does The Washington Post, which had championed judicial activism on the left for decades, decide that what the court needs in 2018 is careful restrained justices?” Well, it’s because the tables have been turned and the editorial board of The Washington Post knows that very well.
After losing Kavanaugh battle, political left attacks the legitimacy of the Supreme Court and Constitution
But one of the more bizarre arguments heard in the aftermath of the confirmation battle came in articles that appeared in both the New York Times and The Washington Post. You can see both of these articles as offering new talking points in the cultural left. You’re going to hear these talking points over and over again. In these articles, the argument is made that both Justices Neil Gorsuch and Brett Kavanaugh, appointed by President Donald Trump, actually represent what Michael Tomasky called in The New York Times minority majority justices, “Part of a five vote majority on the bench but nominated and confirmed by a president and a senate who represent the will of a minority of the American people.”
Now, how in the world is that argument made? Well, it’s made in greater detail in The Washington Post by Philip Bump. He writes, “There have been five presidents who assumed the office after having lost the popular vote. Between them, they nominated 12 justices who ended up serving on the Supreme Court. On Saturday, with Brett Kavanaugh confirmed, the number climbed to 13,” but then, Bump goes on to write, “Kavanaugh has a distinct honor. He will be the first justice nominated by someone who lost the popular vote to earn his seat on the bench with support from senators representing less than half the country while having his nomination opposed by a majority of the country.”
Now, how do you do that math? Well, when you look at the last part of this, it’s clearly just because of polling and it’s the selective polling that Bump wanted to cite. More importantly are the electoral results indicated here. This is an argument we need to look at very carefully. The argument is that these two justices appointed by President Trump should actually be seen as representing only a minority of the American people because President Trump lost the popular vote, even as he won the presidency in the electoral college.
But then the math gets even more interesting, and this is where the talking points get a lot more revealing. The talking point is this. If you then go from the popular vote for president and you look at the math in the Senate, the 50 votes for Justice Kavanaugh represent a minority of the US population. Now, that’s looking at every senatorial seat and assigning to every senatorial seat half of the population of the state that is represented.
It’s clearly an effort to try to rob Justices Gorsuch and Kavanaugh of moral authority on the court by suggesting that they were eventually produced, that is, appointed by and confirmed by elected officials who represent less than half of the American people. Bump actually takes the argument further when he writes, “Nearly half of US residents over the age of 18 didn’t vote. Of the entire over 18 population,” Bump writes, “Trump got only about 25% of the possible votes. Clinton got about 26%.”
Now, what’s going on here? This is actually an attempted subversion of our entire constitutional order because President Trump was elected president of the United States by the electoral college, by our constitutional order, and the United States Senate from the very beginning of our constitutional order as a republic was established in order to equalize the states so that California, with 10s of millions of population, has the same number of senators as a state like Wyoming.
But here’s where, as you’re doing worldview analysis, this picture gets really, really interesting. It is because the states with the large populations that tend to be located along the coast tend to be far more liberal than the heartland of America, but those heartland states, states like Kansas and Oklahoma and Wyoming and Montana, as Alabama and Mississippi, they have the same two senators as Massachusetts and New York and California and Washington State.
What’s really important from this is to see that the moral political cultural divide in the United States has now led to the point where the left is dissatisfied with our basic constitutional order. Thus, you see the attempts to try to subvert or eliminate the electoral college. Thus, you see what is now a basic accusation that the Senate of the United States is not representative of the American people.
But here’s where you also have to understand that the framers of the US constitution understood exactly what they were doing and if we did not have the electoral college and we did not have the United States Senate but had something like a British parliamentary system, then whoever got the most votes in states like California, Massachusetts, and New York can simply ignore the rest of the country.
So, we come to understand that one of the most basic arguments we’re going to hear is that the court’s not legitimate, so any decision by this court is illegitimate, especially a five four decision isn’t legitimate. But we need to remind those on the cultural left that it was the left making the very same argument for the Supreme Court and for five four decisions going back just a few decades ago.
Susan Collins fires back at Planned Parenthood after pro-abortion group reveals partisan double-standard
There’s so many other aspects of this big story on this Monday after the confirmation vote that will demand our attention. Here’s a headline from The Washington Times, “Susan Collins swings back at Planned Parenthood over Supreme Court double standard.” Now, that just promises to be an interesting story from the headline alone.
But as Valerie Richardson, reporting for the Times tells us, “Senator Susan Collins, Maine republican, accused Planned Parenthood of a Supreme Court double standard Sunday, arguing that the organization has never supported a pro-choice justice nominated by a republican president.”
Now, never as they say is a very long time, but to understand exactly what Senator Collins is talking about, Senator Collins has made the center of the target of the cultural left and specifically by Planned Parenthood because of her speech that was given in support of Judge Kavanaugh and her crucial vote, as well.
At 3:52 PM on October the 5th, Planned Parenthood Action tweeted and I quote, “This isn’t just another vote. Senator Collins has made it clear that she can no longer call herself a woman’s rights champion. She has sided with those who disbelieve, disrespected, and even mock survivors. We deserve better. Women won’t forget.”
Now, what makes that incredibly interesting is that just a few months ago in the fall of 2017, Planned Parenthood awarded to none other than Senator Susan Collins their 2017 Barry Goldwater Award, which as The Times tell us, is given to republicans who, “Champion reproductive healthcare issues.” In other words, abortion.
So, Senator Collins represents one of the very few republicans left who is pro-choice and we wouldn’t allow that for others, so we’ll simply say she is genuinely essentially pro-abortion, and she made very clear her support for abortion even as she indicated she would vote for the confirmation of Justice Kavanaugh. Planned Parenthood loved her so much that just a few months ago, they gave her the award for being exactly the kind of republican they want, but then they turned on her in this tweet, claiming that she had even sided with those who assault women rather than those who support them.
But that was a bridge too far for Senator Collins, who responded on CNN’s State of the Union yesterday by saying, “First of all, I have never disregarded, disrespected, or mocked survivors. That is just plain untrue.” But then she leveled the guns back on Planned Parenthood, and this is what’s really important as we think in worldview analysis. “I would note that Planned Parenthood opposed three pro-choice justices just because they were nominated by republican presidents, David Souter, Sandra Day O’Connor, and Justice Kennedy. They said the same thing,” said Senator Collins, “Women will die. This is just outrageous.”
Well, indeed it is outrageous. It’s outrageous also that Senator Collins would hold to a pro-abortion position. It’s outrageous that Planned Parenthood would love her so much that they gave her what amounts to their republican of all time award just a few months ago. But it tells you how the left and groups such as Planned Parenthood have now staked everything on the US Supreme Court and they staked everything on preventing the nomination of Justice Kavanaugh.
But here’s where Senator Collins is perplexed, because it had already been reported years ago that Brett Kavanaugh would be a likely nominee from a hypothetical president Mitt Romney, as in the 2012 presidential election, or a possible nominee by a president John McCain going back to the 2008 presidential election, or a nominee, a likely nominee of a hypothetical president Marco Rubio or a president Jeb Bush.
But Senator Collins’ point is that it wouldn’t matter which of those candidates was elected president of the United States, and in the end, it wouldn’t matter which individual they nominated to the court. Groups such as Planned Parenthood are going to oppose them anyway.
So, in sum, as we finally are able as a society to move on from this thing to the next big thing, we can note that there are some significant lessons to be learned and there are some very important signals that have been sent to the future, the signal that groups such as Planned Parenthood, if this is even imaginable, are going to be moving even further to the left and increasing the stridency of their demands.
We’re going to see continued efforts to question the legitimacy of the United States Supreme Court over and over and over again. As these articles in the New York Times and The Washington Post indicate just yesterday, even an effort to question the legitimacy, if we understand the claims, the legitimacy of the constitution of the United States of America.
Sometimes from the right in American history but now resoundingly from the left is a basic frustration with our constitutional republic, our constitutional system of government. At least we understand now in the year 2018 that’s what’s at stake, and for Christians that means we’re just going to have to observe and we’re going to have to think even harder.
Thanks for listening to The Briefing. For more information, go to my website AlbertMohler.com. You can follow me on Twitter by going to @albertmohler.For information on The Southern Baptist Theological Seminary go to sbts.edu. For information on Boyce College just go to boycecollege.com.
(This podcast is by R. Albert Mohler, Jr. Discovered by Christian Podcast Central and our community — copyright is owned by the publisher, not Christian Podcast Central, and audio is streamed directly from their servers.)