The Briefing

Documentation and Additional Reading

Part

New York Times

A New Front in the Kavanaugh Wars: Temperament and Honesty, by Sheryl Gay Stolberg

Wall Street Journal

How Much Politics in a Supreme Court Justice?, by Gerald F. Seib

Wall Street Journal

I Am an Independent, Impartial Judge, by Brett Kavanaugh

Part

Wall Street Journal

The Never Conservatives, by Wall Street Journal Editors

Friday, October 5, 2018

Friday, Oct 5, 2018

Tags: Audio, Brett Kavanaugh, Supreme Court, United States Senate

Transcript

This is a rush transcript. This copy may not be in its final form and may be updated.

It's Friday October 5, 2018. I'm Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part

After a long political drama, it is now time for the Senate to move forward and vote on Judge Kavanaugh

The long political process after the nomination of Judge Brett Kavanaugh to be an Associate Justice of the United States Supreme Court appears to be reaching its end, with a vote for closure expected today in the United States Senate and an eventual full vote on the nomination by Saturday, or if necessary extended into Sunday. The political picture became quite clear yesterday as senators on the Republican side began to make very clear they were satisfied with the FBI investigation, and prepared to go forward. Senate majority leader Mitch McConnell, one of the most veteran leaders of the Senate in modern history, had clearly counted his votes and was ready to move forward, both with the vote for closure, which would bring the nomination to the floor, and the vote on the nomination itself.

Already, just in the last couple of days, there have been several political dramas that have played out, of course. One of them has to do with Democratic senators, especially those representing states where Donald Trump won overwhelming majorities, and especially those Democratic senators from those states in November up for reelection. These would include Senator Heidi Heitkamp, Democrat of North Dakota, and Senator Joe Manchin, Democrat of West Virginia. As of yesterday, Senator Heitkamp, one of the most vulnerable Democrats in the Senate, announced that she would vote against Judge Kavanaugh. Meanwhile, Senator Manchin of West Virginia is in a very interesting predicament. President Trump won his state by an astounding 43 points in 2016, and Manchin, a Democrat running for reelection, he knows he's in a very interesting place. As of this morning, he had not announced how he would vote. But, there's a basically bipartisan consensus that Senator Manchin, the most likely Democrat to vote for Judge Kavanaugh, would not allow himself to be the decisive vote, and so this drama continues to unfold.

Senator McConnell has indicated that the vote of the full Senate is likely to come on Saturday night, but there's another complication, of course, and this one has to do with a human equation. Senator Steve Daines, Republican of Montana, is not going to be on the Senate floor on Saturday night. He's going to be in Montana for his daughter's wedding. Therefore, the Senate Republican leadership has indicated that it might extend the session several hours into Sunday, so that Senator Daines, having attended his daughter's wedding, will then be able to return from Montana to Washington in order, in the extended session, to vote for Judge Kavanaugh as Senator Daines has pledged to do.

It is clearly time for the United States Senate to move forward and to vote. It is also clear that this entire process has become extremely polarizing for the American people, even though Americans were already tremendously polarized, and increasingly so over the last several years of American politics, indeed you could say the last several decades, but accelerating since the political season of 2016. We are now looking at deep divisions amongst the American people. This is a theme to which we will return, seeking to understand not only what that division now represents, but what it points to in the American future.

This polarization preceded, of course, the nomination of Judge Kavanaugh, but the nomination and the confirmation process has been extremely divisive as well as revealing. For example, just consider the fact that The New York Times has given great attention to a letter written by law professors to the Senate, urging the Senate not to confirm Judge Kavanaugh. As of yesterday, it had attracted 2400 law professors by signature. What's most interesting about this is that the letter states, and I quote, "We have differing views about the other qualifications of Judge Kavanaugh, but we are united as professors of law and scholars of judicial institutions in believing that Judge Kavanaugh did not display the impartiality and judicial temperament requisite to sit on the highest court of our land." Now, the reference here is to the judge's temperament and the accusation of the fact that he was partisan in his defense as he offered it in last week's special hearing.

Part

Why it’s intellectually dishonest to act as if the politicization of the Supreme Court is a new development

Earlier this week, the same theme was trumpeted by Sheryl Gay Stolberg of The New York Times in an article entitled "A New Front in the Kavanaugh Wars: Temperament and Honesty.” Stolberg wrote, "Democratic efforts to highlight sexual assault charges that are more than 30 years old have been dismissed by supporters of Judge Brett M. Kavanaugh as the dredgings of ancient history, but the judge's response to those accusations has raised new issues that go to the core of who President Trump's Supreme Court nominee is right now, his truthfulness, his partisanship, and his temperament." Stolberg continued, "For Democrats determined to derail Judge Kavanaugh, his performance last week before the Senate Judiciary Committee is proving to be a new avenue of attack if the accusations of sexual assault are not enough to swing the votes of three key Republicans into undecided Democrats."

Senator Chuck Schumer, the Democratic leader of the Senate said, "The issues of credibility and temperament are not something that happened 30 years ago. They're about Judge Kavanaugh today, and how he is as a 53-year-old." Similarly, a retired Justice of the United States Supreme Court, 98-year-old John Paul Stevens, in a speech that was given this week in Boca Raton, Florida, to a group of older Americans, said that he could not support Judge Kavanaugh for this nomination, even though he had once had a clerk who had previously clerked for Judge Kavanaugh. Speaking of last Thursday's hearing, the retired Justice said, "I've changed my views for reasons that have no relationship to his intellectual ability. I feel his performance in the hearings ultimately changed my mind."

So, how should we hear those comments? How should we look to these arguments? Well, for one thing, it's very, very important to recognize that virtually no one's mind has been changed in this entire process, going all the way back to the hours and days after July 9th when President Trump made his nomination of Judge Brett Kavanaugh public. Which is to say, most of what has taken place over the course of the last several weeks, now one of the most extended periods of political intensity in the United States, has been about trying to make a point to the American people, and trying either to confirm a nominee or to derail that confirmation. It is a sad commentary on our current political state, that most of the rest has simply been a matter of political warfare.

Here's where we also have to step back and understand that when you're looking at those law professors, well, the list reveals, in the main, if not overwhelmingly, that these law professors were probably opposed to Judge Kavanaugh's nomination long before the hearings occurred, which they claim is the very reason that they wrote their letter. Meanwhile, the same is likely to be true of many others.

When it comes to Justice Stevens, even though he says that he at one time had supported Judge Kavanaugh, that's not even really an important political issue, he now says that he opposes him. But, we should also note that John Paul Stevens, who was appointed to the court by President Gerald Ford, he was appointed to the court himself as a Conservative, at least a so-called moderate Conservative, but very quickly he moved to the left, as the pattern has replicated itself over and over again, and became a very reliable vote on the Supreme Court's liberal wing. At least we can say that, given human nature, he's not likely to celebrate a Justice Kavanaugh on the court, precisely because Kavanaugh operates from a fundamentally different judicial philosophy that is likely to look at the precedents in which John Paul Stevens participated under some kind of new scrutiny. That's not something we can assume the retired Justice wants. Here, we don't have to read his mind. He has made public comments since his retirement from the bench that have made similar points.

Meanwhile, as we consider Senator Schumer's statement about the hearings, we also have to keep in mind that in the mere hours after the nomination was made public on July 9th, Senator Schumer had already announced that he would be leading his party to defeat the nomination.

So, a lot of this simply requires Americans paying attention to what's going on. And, as we pay attention to what's going on, the conversation just gets more interesting. For example, Laurence Tribe, Professor of Constitutional Law at Harvard Law School. Again, a very liberal legal scholar who had at many points in presidential administrations of Democrats been considered a likely nominee to the Supreme Court himself. Laurence Tribe wrote an article in The New York Times entitled "All the Ways a Justice Kavanaugh Would Have to Recuse Himself.” The subhead in the article, "Given his blatant partisanship and personal animosity toward liberals, how could he be an effective member of the Supreme Court?"

Now, as I said, Professor Tribe comes from the political and the legal left, if that were not clear already, and it is. He is the author of a recent book arguing for the impeachment of President Trump. But, Tribe argues in this argument that Judge Kavanaugh is now so partisan, identified because of the hearings, that if he were to be on the court he would have to recuse himself from ... Well, the implication of Tribe's argument is that he would have to do so from a vast number of cases that would come before the court, simply because, as Tribe argues, he is now understood to be political. But, this is where we have to think very carefully.

The reality is that, especially since the 1980s, when the word "bork" entered our vocabulary as a verb because of the Democrats politicizing the nomination of Judge Bork to the United States Supreme Court and beginning the process of making every single nomination highly partisan, the reality is that the court is political in this sense. It is true that our constitutional founders intended the Supreme Court to be both, in their own words, the least dangerous and the least partisan of all the three major branches of government. But, the entire process in which the court operates is political. It is an elected President of the United States who makes the nominations. It is the United States Senate that has the constitutional authority of advice and consent. It is that process that over the last several decades has devolved into an absolute political acid bath. Thus, it's politically and intellectually dishonest now to argue that partisanship has entered into the equation. It has always been right there under the surface. But, ever since the Bork hearings in the 1980s, it's no longer under the surface.

When it became clear earlier this year that Justice Anthony Kennedy, the so-called swing vote on the Supreme Court, would be retiring, it was also just as immediately clear that the process would be intensely partisan. Long before President Trump had even named a specific individual to this seat, the Democrats in the Senate were already working to block the nomination, Republicans in the Senate were already moving to support the nomination. It's because virtually everyone understands in this current moment the importance of the United States Supreme Court, and it's intellectually dishonest for either side to say that this is a process that began with some kind of political neutrality or has ever been marked by a nonpartisan character in any moment, any hour, even any second of this process.

But, when we consider partisanship as a central component of the hearings concerning Brett Kavanaugh, we also have to consider the fact that the Supreme Court has been politicized throughout most of its history. Perhaps not in such a partisan manner, but then again, often times in almost exactly such a partisan manner. Further more, if you look to the history of the United States Supreme Court, what's really interesting is to note how many highly politicized figures eventually sat on that court.

When I thought of these controversies, my mind immediately went back to the late Chief Justice of the United States Supreme Court during the last half of the 20th century, Earl Warren, who of course became a liberal lion, an icon of the Supreme Court. Earl Warren had served as Governor or California, had been deeply involved in Republican presidential politics, had himself served President Eisenhower as Solicitor General of the United States, and was in that position when was nominated as Chief Justice. Needless to say, it was a highly partisan environment, and when you're looking at individuals to sit on the court, Chief Justice Earl Warren had a clearly partisan background. By the way, when Warren did become Chief Justice, three members of the court serving with him had been former members of the United States Senate, and two had served as Attorney General under President Eisenhower. Again, all of them very politically active.

Gerald Seib writing for The Wall Street Journal gets right to the point, "Senators from both parties proclaim they want fair and impartial figures who bring no political agenda to the court. In fact, that is somewhere between misleading and a lie. Both sides actually want predictable judges, not impartial ones." He continues, "Republicans and Conservatives expect their nominees to defend Conservative programs and ideas. Indeed that expectation formed the entire basis for the support many Conservatives gave President Trump in the 2016 presidential campaign." Seib goes on, "Similarly, Liberal Democrats want Liberal judges, and they expect Democratic senators to do everything in their power to block Conservative appointments. That forms a large part of the pitch some Democratic activists are making to turn out supporters in key senate races this fall." He concludes, "These expectations actually are rational, considering the questions the country now expects the Supreme Court to decide. A deeply polarized political system can't bring itself to fully resolve burning social questions - abortion, same sex marriage, gun rights - so it relies on the courts to do the job."

Now, that's a very important argument made by Gerald Seib, and it is central to understanding what's going on here. The outsized importance of the Supreme Court of the United States at present is because of the political failure of Congress in the main, but also of presidents dealing with Congress. So, many of the issues most divisive before the American people have been sent to the court precisely because those who have been especially pushing a more progressivist or liberal understanding have been unable to reach their agenda through legislation, through either the Congress, or even we should note the election of more liberal Democratic presidents. The reality is these issues have gone to the Supreme Court, and it's also the reality that the Supreme Court has accepted them and has also generally accepted the role - especially back in the 50s, 60s, and 70s, looking at decisions such as Roe v. Wade, legalizing abortion in 1973 - of becoming an engine for moral revolution in this country.

Now, that's not to say that some of the issues the Supreme Court has dealt with were either wrongly decided or outside the court's power. It is to say that on issues such as the sanctity of human life, on issues such as immigration, on issues that would include civil rights legislation, it is the failure of Congress writ large, Congress after Congress, that has led to the situation where the Supreme Court often becomes the arbiter of these issues. A role it was never intended to play, and a role that now means that every single nomination to the court, and especially when you're looking at the historic role that Anthony Kennedy had played as a so-called swing vote, well, the political stakes are so high. Again, we go back to the fact that the political table was set so that if you were to go back to the announcement of Justice Kennedy's retirement, and you were to imagine what the vote in the Senate would have been then, if you go back to July 9th when President Trump made his nomination of Judge Kavanaugh and imagine what the vote would have been then, the reality is that, with very little change even imaginable, that is likely to be the vote that takes place on Saturday or Sunday.

Other arguments in just the last couple of days are very important. One of them was offered by Benjamin Wittes. We've mentioned him before on The Briefing, and you will soon remember why. He is the editor-in-chief of Lawfare and Senior Fellow at the Brookings Institution. It was Mr. Wittes who made the argument just before the hearings last Thursday, that Judge Kavanaugh must make an argument that would be compelling, but is not likely to be able to make an argument that could be compelling according to Wittes' criteria. Wittes went on to argue, you may remember, that Brett Kavanaugh should withdraw his nomination because there is no honorable way, he argued, to defend himself, even if innocent. But, that kind of moral insanity is the kind of slomp and trap from which no society can emerge sane.

In his more recent essay, Wittes wrote, "I am also keenly aware that rejecting Kavanaugh on the record currently before the Senate will set a dangerous precedent. The allegations against him remain unproven. They arose publicly late in the process, and by their nature are not amenable to decisive, factual rebuttal. It is a real possibility," Wittes writes, "that Kavanaugh is telling the truth and that he has had his life turned upside down over a falsehood." In the end of that paragraph, Wittes writes, "We are on a dangerous road and the judicial confirmation wars are going to get a lot worse for our traveling down it." But, what Wittes doesn't recognize is that he is accelerating the path down that road.

This morning, The Wall Street Journal has run an article by Judge Kavanaugh himself entitled "I Am An Independent Impartial Judge.” In the article, Judge Kavanaugh again sets out his judicial philosophy, and then he also gets to the point of the hearings last Thursday. He wrote, "I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all, my daughters."

Now, what's interesting, and simply has to be acknowledged here, is that in writing this kind of article, or writing the articles against Judge Kavanaugh, we are now at the point where very few minds are likely to be changed. What has happened instead, in this polarized context, is that the supporters are even more supportive and exasperated, and the opponents are even more opposed and exasperated. Furthermore, there is very little way even of conducting an honest discourse back and forth about what is really at stake. Because politicians, in the main, cannot afford to acknowledge what is at stake, honestly, and most citizens are exhausted by the process, and sometimes even interested only anecdotally and peripherally unable to sustain the kind of morally serious conversation that is requisite here.

To state the matter as Christians should think, we understand that judges have a very important role, and that is judges are appointed and confirmed on the bases of a hyper-partisan identity, then we are looking at the weakening of the third branch of the United States Government. But, we also have to understand that there is no naivety here. There is no situation in which these hearings could have been nonpolitical. There is no situation in the current political moment when these hearings, or the entire process, could have been nonpartisan. There is no possibility that we were looking at the reality that there is no way that a Conservative nominee to the court was going to be confirmed with the votes of those who are Liberals opposed to a more Conservative direction on the court.

And, of course, when the shoe is on the other foot, you see the same kind of partisan pattern. That's what took place in the Supreme Court during the year 2016, when Justice Anthony Scalia died, and the Senate Republican leadership refused even to consider Judge Merrick Garland for confirmation to the Supreme Court. That was an ideologically and politically driven decision, so is what is taking place today. There is no position of neutrality, and there never was a neutral moment. We are in an increasingly hyper-partisan age, but this didn't emerge from a vacuum. It has emerged from the deep cultural and world view cleavages that now mark the American people, and have accelerated through our society and have ascended all the way to the United States Supreme Court.

Part

What the Kavanaugh fight has revealed about more fundamental divisions in American life

It is thus really important that one of the most significant arguments made in the midst of this political mess has been made by an author from the left, Elizabeth Bruenig, writing for The Washington Post. She identifies in the article as a leftist. She has recently supported socialism and the redistribution of wealth, so we know where she is coming from. But, she is incredibly frustrated and she writes, "In American life, politics unfolds almost entirely in a language of lies, and people know when they're being lied to, and they hate it." She goes on to say, "The reason for all the lying is at least in part nonpartisan, and it has to do with the limitations of classical Liberalism, meaning the philosophy that underlies our entire system of government." She continues, "Because Liberal democracies aim to be tolerant and inclusive of multiple conflicting versions of the good, they have to find a way for people with vast philosophical differences to talk to each other intelligibly about politics." So, she goes on to explain, "We have a language of public reason. That's a language that has a certain rationality to it, but is no longer able to communicate over the great political divide in the United States." So, she says, "Politicians unable to speak in such a way now just lie." She writes, "Instead, we supply reasons that we think will be persuasive to people who don't necessarily have anything in common with us philosophically."

What's most important about this article is the recognition that something more fundamental, even in partisan ideology, is at stake here. We're not just looking at Republicans versus Democrats. We're not just looking at Conservatives versus Liberals. We are looking at people who have lost the ability to speak across an abyss, because that abyss is even more fundamental. We're not now dealing merely with a partisan divide. We're not just dealing with different approaches to government. We're not even just dealing with different positions on contentious moral issues. We're talking about the most basic fundamental world view. We're talking about the meaning of life. We're talking about the origin of life. We're talking about whether there is or is not a consensual morality. We're talking about whether there is or is not objective truth, and thus also objective moral rules. We're talking about whether or not human life has any inherent value at every stage and under every condition. We're talking about what it means to be human, even before we can have a conversation about what it means to be a citizen, even before we can have a conversation about what it means to be an American.

But, it's also really important to look at an argument that has come from the center right in the United States, from the editorial board of The Wall Street Journal. It would not be accurate to say that this editorial board is made up of people who are united in Theism, or united in the Judeo-Christian heritage, or are united even in a conservative constitutional philosophy. It is fair to say that the editorial board of The Wall Street Journal is certainly more conservative than the editorial boards of newspapers such as The New York Times or The Washington Post.

The Journal's editorial board just released a statement entitled "The Never Conservatives.” The subhead in the editorial "The Kavanaugh fight isn't about Trump. We're all deplorables now.” The editorial board statement comes down to this. Americans are now so divided that someone like Judge Kavanaugh becomes a symbol of that divide. Furthermore, across the divide, across the abyss, people on opposite sides of this polarized situation not only find it difficult to communicate with one another, but increasingly the left looks to the right with not only condescension, but with absolute loathing. That's why the editorial board of The Wall Street Journal has written a piece in which it argues that, from the perspective of the left, anyone who supports the nomination of Judge Kavanaugh, anyone who supports the nomination of any Conservative, anyone who supports the nomination of someone who would hold to an originalist understanding of the US constitution, is not only, to use the language of the 2016 presidential campaign, not only supporting a deplorable, but by that support identifying themselves as deplorables as well.

By the time we come to The Briefing on Monday morning, we will know the outcome of this process, if indeed the vote comes on Saturday and Sunday. It's about time. America can only stand so much political tension, even in a time of increased ongoing tension. There are other related aspects of this unfolding story to which we should rightly turn, but there are also other issues that demand our consideration. Intelligent Christians thinking in these times, and Christians must be thinking in these times, face an array of issues thrown at us with a multiplicity and a velocity unprecedented. That's no excuse for not thinking. It's no excuse for not thinking carefully. Sometimes we have to recognize it's no excuse for not thinking long enough, to think seriously enough about an issue that demands that kind of long and serious consideration.

For both sides, there are going to be very serious lessons learned here, and we'll have to think about those as well. But, that will have to wait for another day.

R. Albert Mohler, Jr.

R. Albert Mohler, Jr.

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