Supreme Incivility

The confirmation of Ketanji Brown Jackson to the Supreme Court was a fait accompli the moment Biden proffered her nomination. The Democrats were all certainly going to vote for her, and their 50+Tiebreaker majority in the Senate guaranteed the outcome.

Nevertheless, many Republican Senators, for reasons that certainly vary and that we can speculate, decided to put her through the "new normal" dog-and-pony show, wherein they grandstand, attempt "gotcha" games, and otherwise put themselves in the public spotlight.

This "new normal" began with the 1987 nomination of Robert Bork by Ronald Reagan. Prior to that episode, it was the norm across the 20th Century that the Senate would assess a nominee's fitness, and rubber-stamp almost all the time. There was only one rejection between 1894 and 1968 (and that one seemed rather apropos). Nixon had two nominees rejected thereafter, but both were bipartisan rejections of men who held segregationist or white supremacist views.

Bork had no such disqualifiers, and was widely regarded as a brilliant jurist. Bork's sin was being a die-hard originalist replacing Lewis F. Powell Jr., the "swing" vote at the time. In other words, the Left's issues were on policy, not competence or moral wickedness. Since the Democrats controlled the Senate, they had the power to stop his nomination. They did so, not only in vote but via a scorched-earth character assassination campaign that included searching his trash for incriminating anything.

Their battle was successful, not just in sinking Bork's nomination, but in cowing Reagan into nominating Anthony Kennedy (after another failed nominee - Douglas H. Ginsburg - who was doomed the moment he admitted to smoking pot on several occasions). Kennedy, neither dyed-in-the-wool conservative nor liberal, was the swing vote on the Court for decades thereafter.

Elections have consequences. The President has the privilege of nominating Justices, and the Senate has the privilege of accepting or rejecting them. The Senate was within its rights to "bork" Bork. But, the damage done to the comity of the political sandbox was permanent. A new rule was set: the candidate presented to the Senate not only had to be qualified, he or she had to pass ideological muster with the majority party.

From one perspective, this new normal does impose some additional restraint on the President, and establishes a bit more "people's voice" to the proceedings. If the voters decide a President isn't doing it for them, they can restrain his hand in one more fashion in mid-term elections.

That perspective would require some sense of solemnity and aplomb from our politicians.

We didn't get it.

What we got is, as I mentioned above, grandstanding, gotcha games, blather, exaggerations, misrepresentations... and more than a little stupidity. Senator Mike Braun (R-IN) shoved his whole leg in his mouth by suggesting that the 1967 Court decision that the ruling Loving v Virginia, which struck down a ban on interracial marriage, might have been better left to the states.

Idiocy.

His attempts to backtrack, spin, correct, and excuse ("I was distracted by prior questions") simply serve to affirm that the confirmation process has become more about the Senators getting screen time than about determining if a candidate is qualified. And, he inadvertently makes a point about conservatives and rights: Marriage, a consensual contract should not be subject to strictures by the State, other than age-of-majority considerations (minors can neither contract nor consent, legally), and arguing that it's a states' rights matter ignores the Constitution's protections for individual rights, incorporated at the state level by 14A.

Here's the reality: Conservative spin aside, KBJ is certainly qualified for the job. And, yes, I'm wholly aware of her "what is a woman" answer (she certainly knows, but failed to avoid the trap). Is she a left-liberal, apt to apply leftism to her opinions? Of course. Do I expect to like her as much as I like the libertarian-leaning justices? Likely not, as I recently blogged. Her votes and rulings will be of progressive flavor (though she's got a good record on 4A and 5A matters, which gives this libertarian some solace). But, it's the President's prerogative to pick the nominee, and with the 50+1 edge in the Senate, Biden wasn't obligated to select someone whose views align with the opposition party more than those of his own, nor was he boxed into picking a centrist/wild-card a la Justice Kennedy. Did he limit the talent pool with his "black woman" requirement? Yes, but apart from making the mistake of declaring it beforehand, it's (again) his prerogative, and there are enough high-level judges in that smaller pool from which to choose a qualified candidate.

The GOP didn't thrash her to the degree the Democrats thrashed Kavanaugh, but they did play the same base, destructive game. She was going to be confirmed, barring a Reptilian revelation, so why not take the high road, and possibly restore some of the lost comity to the "world's greatest deliberative body?"

Yes, that was, unfortunately, a rhetorical question. People say they want less vitriol in politics, and most probably do. But, the most vocal do not, and too many more want less vitriol only from the other side, desiring that their foes de-escalate first. With punditry being encouraged and rewarded for partisan excess, there's little incentive to tone things down and lots to hyperbolize. My social media feed is full of "traitor" accusations regarding the three Republican Senators who voted to confirm, many of which are goaded by partisan agitators.

To reiterate, there's very little incentive to be civil in partisan political matters. Too many people like in-your-face, smash-mouth politics, and that incentivizes everyone and his grandmother to bloviate and harangue rather than engage in meaningful exchange. This is on display every day and every night on our televisions, where hosts of talk shows, who are ostensibly interviewers, routinely cut off, talk over, and browbeat their guests. Phil Donahue may have been considered agitating gadfly in his day, but he actually listened to his guests, even when he disagreed with them. Joe Rogan also listens, even when he disagrees, and asks questions rather than simply looking to frog-stomp others' opinions.

It is heartening that Rogan gets 10x the viewership of the biggest cable television talking heads. It suggests that the incentive structures may be changing, that the bully-boy style of interview may finally be alienating enough Americans to prompt Rogan-emulators. We can help that change by being first in the rhetoric tone-down. Sure, we can voice our genuine disagreement with some of KBJ's views, but we do better when we stick to grounded realities, rather than buying into the "gotcha" games.

As for the hearings themselves, I offer a quote from Clarence Thomas:

One of the things you do in hearings is you have to sit there and look attentively at people you know have no idea what they’re talking about.

That's why I paid them little attention, and why I haven't wound myself up that much about KBJ's nomination.

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Peter.