Wednesday, Aug 1, 2018

Part I

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As goes the Supreme Court, so goes the nation: Why the Kavanaugh nomination matters to both sides of the partisan divide

In the summer of 2018 thus far, by any estimation, the most important event was the nomination of a new justice to the United States Supreme Court. The stage was set in late July with a not completely unexpected retirement announcement from Justice Anthony Kennedy at age 83, thus, President Donald J. Trump will have the opportunity to nominate a second justice to the nation’s highest court.

The power to appoint federal judges is one of the most important responsibilities vested in the office of President of the United States. The president makes nominations. Those nominees must be confirmed by the United States senate, and then if you’re looking at federal judges at the district court level, at the appellate court level, and all the way to the Supreme Court, those are lifetime appointments. The importance of those appointments has always been very clear, but in more recent years, the politicized process of naming judges has become exponentially more politicized. We’ll look at that history in just a moment.

But, what we need to see most importantly is that on July the ninth, in a very carefully planned event from the East Room of the White House, President Trump announced his nominee to succeed Justice Kennedy. That nominee judge Brett Michael Kavanaugh currently serving as a judge of the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit Court of Appeals has always been considered in the United States, the second most powerful court, second only to the Supreme Court, and thus it has often been a training ground for future justices of the supreme court. That turned out to be the case again when president Trump made yet another nomination from the D.C. Circuit.

As the days led up to the announcement on July the 9th, there was a great deal of speculation, but President Trump had as a candidate agreed to a list of 25 judges from which he said he would choose those he would nominate, especially to the nation’s highest court, the Supreme Court. That list had been worked out beforehand with the influence of conservative legal groups such as The Federalist Society. All of those judges were pledged to be strict constructionists or originalist’s, judges who would give primary attention to the actual words, and the syntax, and grammar to the important text of the United States Constitution, and U.S. statutory law.

Judge Kavanaugh was on that original list as was Judge Neil Gorsuch who was President Trump’s first appointment to the Supreme Court. When President Trump made the nomination official on July the ninth, he made very clear that he was pledged all the way back to when he was a candidate to appoint justices to the Supreme Court who would follow in the tradition of the late Justice Antonin Scalia, perhaps the most important, and influential strict constructionist or textualist as he preferred to call himself in the history of the Supreme Court.

The political nature of the context was very clear when Senate Democrats, and prominent liberal groups pledged to oppose whomever president Trump might nominate. Why would that be the case even before the identity of the nominee could be known? The reason is the fact that The Supreme Court has become so polarized, and politicized especially over the last six or seven decades. There’s a history there, and the history goes back to the fact that in the second half of the 20th century, more liberal, and progressive forces in the United States very frustrated at their inability to successfully gain their agenda by legislation at either the state or federal level increasingly turned to the federal courts.

In the words of the Wall Street Journal, liberals began to turn to the federal courts as their legislature of first choice. That’s of course indicating by the very vocabulary the problem. The judiciary is not supposed to be legislature, but liberals began to reorganize the court as an engine for moral, and cultural revolution. The law became the tool kit for that revolution, and the court became the context, most importantly, the Supreme Court.

Under the leadership of then Chief Justice Earl Warren, in the 1950s and 1960s, the court took on this progressive as direction, and it continued to do so most infamously with court decisions such as the 1973 Roe Decision, legalizing abortion on demand nationwide and the 2015, Obergefell Decision, legalizing same sex marriage. That just looks at two of the most contentious moral issues, but in both of those cases, the important thing to realize is that the court acted when there is no way that liberal forces wouldn’t have been able to gain a victory through the United States Congress.

But, Congress is responsible for legislating, not the courts, but as the New York Times pointed out on a front page story the morning after President Trump made his nomination, in the words of the headline, “Conservatives close in on three decade dream tipping court to the right.” Now, this is a political equation, and it is true that conservatives have been pressing in over a 30 year period on trying to redirect to the court, but the reality is that right now both sides in America’s polarized culture recognize that the future of the Supreme Court has a very great deal to do with the future of the nation, and especially the future of its laws.

In making the appointment of Brett Kavanaugh, President Trump turned to a man who represents the consummate conservative inside track in Washington D.C. He grew up in Washington D.C. His father was an attorney who turned into a lobbyist, his mother was a teacher who turned into a lawyer. He came from a very privileged background, attending a very expensive Jesuit Prep School in Washington D.C., and then attending Yale University, and Yale law school.

After graduating from law school, Kavanaugh served as clerk to two prominent federal appeals court judges, first Judge Walter King Stapleton of the Third Circuit, and then more famously Judge Alex Kozinski of the Ninth Circuit. Judge Kozinski has been historically famous for providing those who would be clerks to Supreme Court justices in future years. After serving with Judge Kozinski, Kavanaugh would go on to serve as an intern under the solicitor general of the United States, then Kenneth Starr. The solicitor general is the legal official who represents the government of the United States before the Supreme Court.

After service with the solicitor general, Kavanaugh went on to serve as a clerk to Justice Anthony Kennedy, by no irony, associate justice of the United States Supreme Court, and thus Judge Kavanaugh would serve as a clerk to Justice Kennedy, the very justice whose position he has been nominated now to fill. Kavanaugh came to national attention during the administration of President George W. Bush, when his wife would serve as Bush’s personal secretary, and he would eventually rise to the important role of staff secretary in the White House, and assistant to the president.

Later in 2003, President Bush would appoint him to the D.C. Circuit as a judge, but this came in a moment of great politicization of the Federal Court, and nominees, and the nomination of Judge Kavanaugh languished for three years until in 2006, an agreement between Senate Democrats, and Republicans eventuated in several appointments being confirmed, amongst them Judge Kavanaugh.  Over the last several years, now, almost 12 years on the D.C. Circuit, Judge Kavanaugh has racked up a record which is by any estimation very conservative, in almost every case serving as a model of that kind of originalist, strict constructionist, textualist interpretation of the Constitution.

Part II

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What does it mean for a judge to be a ‘strict constructionist’?

What’s at stake in those three words? Let’s take strict constructionist first. This means, that the judge is committed to understand the strict construction of the words, the syntax, the grammar, and the text of the U.S. Constitution Statutory Law. That means that, there is to be a limitation on the judge’s own opinions, and the judges temptation towards abstractions from the words, and the sentences of the Constitution. A strict constructionist is bound to the text. The word textualist, that was Justice Scalia’s own preferred word is very similar. The strict constructionist, and the textualist understand the text itself serves as the boundary, and as the authority.

The word originalist goes back to understanding that the original meaning of the original authors should determine the interpretive framework. That’s simply to say that the one who authors a text has the first, and most important right to say what the text means. In the larger scheme, we can reduce it to this question, who is in charge? Who has the greater authority? Is it the text, or the reader, interpreter of the text? Conservative legal scholars believe that it is the text that has the primary authority, not the reader, or interpreter.

Liberals have argued precisely the opposite. They have argued going all the way back to President Woodrow Wilson, in the early 20th century for something like a living Constitution. That’s the kind of language used by very liberal legal scholars who have pushed for the court to liberate itself from the words, the sentences, the text of the Constitution, and find what the original authors of the Constitution certainly did not intend, and did not mean.

The key turning point, and Constitutional interpretation came in 1965 with what was known as the Griswold Decision, and had to do with legalizing contraception, but in the majority opinion in that case, Justice William O. Douglas writing for the majority said that he came to his conclusion because of the Constitution, but most importantly, he said, “Because of penumbras formed by emanations.” If that sounds like abstract language, it is, and the abstraction is very important.

Justice Douglas knew that the original authors of the U.S. Constitution and the bill of rights had no thoughts about contraception, and certainly there is no right to contraception in the words, the sentences, the text of The U.S. Constitution, but he argued nonetheless that, “Specific guarantees in the Bill of Rights have penumbras formed by emanations from these guarantees that help give them life and substance.” In other words, a living Constitution, a Constitution, it can be made to say what it does not say, a Constitution that can be made to say anything, a judge or in the case of the Supreme Court a majority of justices wants it to say.

You can draw a direct line from the Griswold Decision in 1965, to the Roe V. Wade Decision in 1973, and the Obergefell Decision in 2015. They all follow the same basic Constitutional logic, and Christians understand here that there is an inherent parallel, between liberal interpretations of The U.S. Constitution, and liberal interpretations of scripture. Of course, when we’re talking about the Constitution of the United States, we’re talking about a human document. When we’re talking about scripture, we’re talking about a God breathed document, the very word of God, but in both cases, the question is, who has the authority? Is it the text or is it the reader? We should not be surprised in the correlation of worldview here that you have liberal powers when it comes to the moral battles who tend also to hold to liberal interpretations of scripture, and theology, and liberal interpretations of the Constitution. The same is true on the other side.

What comes next will be very important hearings before the committee on the judiciary of the United States senate, but they’re going to be important, not so much in terms of what will happen, but as we understand it to be the senate’s form of what we might call now performance art. The senators are all going to be performing for the cameras. This goes back to 1987, when the court process was tremendously politicized under the leadership of then judiciary, chairman Joseph Biden, later vice president of the United States. President Ronald Reagan had nominated Judge Robert Bork to the nation’s High Court, and the Liberals were determined to prevent the nomination from succeeding, and they succeeded in that effort.

Chairman Biden used the new power of television along with the democratic colleagues, to turn the hearings into a television show, a television show that from this point onward has made every nominee to the United States Supreme Court, a controversial moment. Until recently, Federal Judicial Nominees had required 60 votes in order to overcome a filibuster. This is known as cloture, the achievement of 60 votes, but Liberal Democrats during the Obama administration frustrated with the slowness of Republicans to confirm President Obama’s nominees remove the filibuster from such nominations. The next step was to remove it from the Supreme Court. That step was made under Republican leadership, after the nomination of Justice Neil Gorsuch.

Republicans have a mere majority in the Senate of 51 votes, but Senator John McCain being ill is not expected to be able to be in the chamber to vote, thus, every vote is going to matter. Political reported last night that the democratic strategy is to try to get democratic senators and so called red States, states that generally were carried by President Trump in the 2016 election to wait as long as possible before agreeing that they will vote for the confirmation of Judge Kavanaugh. They’re also putting maximum pressure on so-called moderate Republicans.

But, it is unlikely at this point that there is anything that has come forward that would lead even those moderate Republicans to vote against judge Kavanaugh. The very slim democratic hope at presence seems to be that some kind of damaging information can be found between now, and when the Senate Judiciary Committee will hold its hearings, but that’s unlikely. One interesting back story to this big story is, the fact that President Trump has been remarkably successful in getting his nominees to the federal courts through the United States Senate, and this points to something many people have not recognized, and that is an unusual working relationship between the Trump administration, and Senator Mitch McConnell from Kentucky, the majority leader of the United States senate.

In the days ahead, we’ll be looking closely at the hearings as they approach, and we’ll be looking at several other dimensions of massive worldview significance as we’re thinking about this news, and the nomination to the Supreme Court. Every nomination to a federal court is important, every nomination to the United States Supreme Court is extremely important, but that is particularly the case in 2018 with this nomination. In the days ahead on The Briefing, we’ll come to a deeper understanding of why this is true.

Part III

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Even in a secular age, the conscience of Western civilization is still haunted and shaped by the Bible

But next, as we’re thinking about the authority of texts, and the interpretation of text, we ask a very interesting question.  Why would the book of Leviticus show up in the opinion pages of the New York Times in July of 2018?

I wrote a full essay on this issue at my website, at AlbertMohler.com entitled, Leviticus in The New York Times, What’s The Real Story Here? But, the story is, the New York Times, its writers, its editors, and presumably its readers just can’t be done with the book of Leviticus as much as they would like to think they are, but even in the secular age, the conscience of Western civilization is still haunted, and shaped by the Bible. This is because the inherited moral tradition of the west of Western civilization and culture, It was explicitly formed by the Bible, both the old and the new testaments, and we should note that the moral power of the Bible continues as the main source of our societies principles, intuitions, impulses, even our cultural vocabulary.

Europe and North America have been shaped by the Bible. This is true of all of Western civilization, and Judeo-Christian moral instincts continue to be the driving energy. The intellectual elites, and the moral progressives in our society declare themselves liberated from the Bible, but if they were really liberated from the Bible, in their consciences, they wouldn’t be writing about Leviticus in July, of 2018. I think Rabbi Jonathan Sacks, formerly the chief rabbi of the United Kingdom was right when he identified Leviticus amongst all the Old Testament books, even amongst the five books of Moses as, “The one most out of step with contemporary culture.”

Leviticus, we should notice that great book of law right in the center of the Pentateuch, and we should also note that just about every verse of Leviticus is offensive to the modern secular mind. The book reveals a God who is both omnipotent, holy, a God who chooses Israel as his particular covenant people, a God who hands down laws not mere values or suggestion. Now, my guess is that you’ve already come to the conclusion that any reference, any focus on the book of Leviticus in the New York Times in 2018 must have something to do with sex, and most particularly with homosexuality, and you would be right. That’s exactly what is at stake here.

The author of the article as a man identified as Idan Dershowitz. The references to him as, “A biblical scholar, and junior fellow at the Harvard Society of Fellows.” Dershowitz begins his article by saying, “No texts has had a greater influence on attitudes toward gay people than the biblical book of Leviticus, which prohibits sex between men.”  Now, that’s profoundly true both in the statement of the books influence, and in the statement of what the text of Leviticus says. The key verses Leviticus 18: 22, though the scriptural commands are repeated in Leviticus 20. Leviticus 18:22 is very clear, “You shall not lie with a male, as with a woman. It is an abomination.”

Abomination we should note is the strongest biblical word of God’s judgment. The prohibition of sex between men is found in a series of commands related to sexuality, and marriage that God gave to Israel. The list of prohibitions includes incest, bestiality, various sexual acts that God said were common to Egypt, and among the Canaanites, but must not be found amongst Israel, but Idan Dershowitz identified as a biblical scholar calls for a little detection work, and what he means by that, is taking the text apart in order to make it say the opposite of what it actually says. That’s exactly what Dershowitz does. He uses modern higher criticism as it became known in the 19th century in order to deny the mosaic authorship of the Bible. He implicitly denies the divine inspiration of the Bible.

Instead, he sees it as ancient near eastern literature, and like so many of the liberal biblical interpreters and Old Testament scholars before him, first in Germany, but then also in the English speaking world, he just takes the texts apart, he dissects the texts, he calls it detective work, but it’s actually applying his own imagination in order to take the text apart, and put it back together in order to say what he wants it to say. His argument is absolutely astounding. He argues that a later editor changed the actual text of scripture as we have it turning what he argues had been permission for homosexual acts into a prohibition.

The New York Times article is actually the distillation of a large academic article that Dershowitz published in an academic journal. I read every single word of that article, and to say that I’m unconvinced is a profound understatement. Actually, It’s just a confirmation of what liberal biblical scholars have been about for the better part of the last 200 years, trying to take the Bible apart both in its texts, and its inspiration, and ultimately its authority. You can find my entire rather lengthy refutation of the Dershowitz article at my website, at albertmohler.com, but the most important issue for our understanding is this, the modern supposedly secular liberal Western mind can’t let go of the Bible. Specifically, It can’t even let go of Leviticus, a book that it hates in a collection of books that it hates.

For the better part of the last two centuries, liberal scholars have been trying to take the scripture apart, for the better part of the last several decades LGBTQ activists have been specifically directing their attention at liberal biblical scholarship to try to turn the Bible on its head, both the old and the new testaments, and of course there are many in the gay rights movement, the LGBTQ movement, plus who have simply argued that the Bible should be disregarded, but it turns out they can’t disregard the Bible themselves. That explains why the book of Leviticus shows up in the New York Times in July, of 2018.

There’s no real question about what the Bible teaches about human sexuality, and gender, both in the Old and the New testaments. There’s also no question about the influence of the Bible in the Western civilization. Even now, right now, the Bible exerts a powerful hold on the modern conscience even when it’s not acknowledged, or even when it is denied. Leviticus 18 has indeed exerted a massive influence on Western society, but that’s just symbolic of the larger influence of the Bible, the Bible from Genesis to Revelation, Leviticus 18 doesn’t stand alone.

We can only imagine is Idan Dershowitz argues, “How different the history of civilization might have been without it.” But, the really stunning thing isn’t the New York Times writing this article on Leviticus 18, in the year 2018, as I said in my article, perhaps that makes you think of Isaiah 40:8, “The grass withers, the flower fades, but the word of our God will stand forever.”