Tuesday, Sept 4, 2018

Part I

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All eyes on the nation’s capital as Kavanaugh confirmation hearings begin in US Senate

This week, starting this morning all eyes will be, or at least, should be on Washington D. C. Starting this morning, the confirmation hearings for Judge Brett Kavanaugh, President Trump’s second nominee to the United State’s Supreme Court, will begin before The United States Senate Committee on the Judiciary.

Now, most often these kinds of congressional hearings draw very little attention. These days, for the last twenty plus years, they have been broadcast on C-SPAN, but you can measure that audience in a bare fraction of the American population. But there are exceptions to that rule and the most important exceptions of late have been these confirmation hearings for justices of the United States Supreme Court.

We need to note that throughout most of American history, Americans as citizens had virtually no access to these hearings. Furthermore, we have to understand that for most of American history, these hearings have been more or less a formality on a handful of occasions. Since 1789, the Senate has refused to confirm nominees to the nation’s highest court by a President of the United States. But until very recent history, that was something of interest to only a small minority of Americans. We will see why that changed, and when it changed, and why that matters now. The most important aspect for our thinking in the beginning is that it does matter a very great deal. We now know that the composition of the United States’ Supreme Court has a great deal to say in determining the future of this nation. The understanding of its laws.

So, many of the most important cultural, legal, and moral questions that have to be addressed by the United States government are now eventually decided not by Congress, not by the President of the United States, but by the courts, and most ultimately the Supreme Court of the United States.

Now, this is one of the problems in our contemporary moment in American democracy. It is clear that the vision of the founders in the Constitution of the United States did not to see the United States Supreme Court, nor the federal judiciary as a whole as a legislative body. But, for the better part of the last seven decades, those on the more liberal sometimes self-styled progressive side of American politics have increasingly been frustrated by their inability to get the laws they demand passed by Congress and signed into law by the President.

So, instead they have turned to the federal judiciary and ultimately again to the United States Supreme Court over and over again in order to gain by judicial decision what they could not gain by legislative action. It is the Left that began the major politicization of the federal courts. It was the Left that looked to the Supreme Court as where they hoped to gain their victories as they did time and again on issues such as abortion. Just think of the Roe v. Wade decision in 1973.

Over the course of this week’s hearings we’re going to be looking at the big plot of the confirmation process, but we’re also going to be looking at some of the emerging–perhaps even today–not yet known subplots. One of the subplots has to do with the persons who will be most vocal, especially amongst the senators. It’s important to understand that the leadership of the committee represents a very long debate in the United States’ Senate.

The chairman of the committee, given the Republican majority, is Iowa Senator Charles Grassley. When Grassley was first elected to the senate–he is now one of the longest tenured of the United States senators–he was considered to be a moderate on such questions, but overtime given his responsibilities, especially on the judiciary committee he has developed his own understanding of what it means to follow an originalist, strict constructionist, textualist understanding of the US Constitution.

On the democratic side the ranking member is California Senator Dianne Feinstein. Again, there you can see a subplot, within a subplot, within a subplot. Diane Feinstein’s another of the longest serving members of the United States Senate. She was considered a liberal when she was first elected. But even though Feinstein has not moved to the right, her party has moved rather radically to the left. So much so that Dianne Feinstein was denied the nomination of her own Democratic party even as she is up for re-election this year in California.

Feinstein will almost surely be re-elected in the midterm elections in November, but the important issue is that her party has moved so far to the left that the signal was clearly sent that Dianne Feinstein’s expiration date politically has already arrived.

Another really interesting subplot to watch over the next several days will be the roles played by several of the more recently elected democratic members of the Senate sitting on the committee on the judiciary. These would include three, no less than three who are now openly discussed as potential contenders for the 2020 Democratic presidential nomination. These would increase New Jersey Senator Cory Booker, California Senator Kamala Harris, and Minnesota Senator Amy Klobuchar. But at this point we should step back for a moment and say why would we even care? Why would this be an issue? Well, it is because ever since 1986, confirmations hearings for justices to the United States Supreme Court have become political battles that are more show pieces than anything else.

Make no mistake the stakes really are incredibly high. There are a few decisions that will come to the United States senators with some kind of regular pattern of greater importance than considering the nomination of justices to the United States Supreme Court, who after all will hold that stewardship for a lifetime appointment.

As you’re looking to the televised hearings, we need to remember that given the advent of live cable television news coverage, given the reality of constant camera presence in these hearings, senators have turned these televised hearings with a great deal of public attention into opportunities to grandstand and showboat themselves especially when it comes to public attention and political leverage for future political efforts, and their own political visions for themselves.

Furthermore, on both sides of the isle, the political parties understand that the great argument about a nominee to the US Supreme Court is actually a great argument about whether or not the Republicans or the Democrats should be trusted with the nomination process, with the nominations themselves and with the future of the nation. All of that to say that when the senators give their speeches, and this will take up a great deal of the opening hours of these hearings, they will really not be addressed to fellow members of the committee. These speeches will really not be addressed to fellow members of the United States Senate. They will certainly not be addressed, even though it might appear on camera that they are addressed, to the nominee Judge Brett Kavanaugh. Instead they are addressed to the public with the knowledge that the cameras are broadcasting and the replays will be broadcast over and over again the points that these senators are understood to have scored in their speeches.

It’s also important to understand that even as there are one-hundred members of the United States senate, two from each of the fifty states, only those senators who serve on the committee on the judiciary will have the opportunity to be involved in this hearing process.

As you’re looking at that, you need to remember that there is no United States’ Senate Committee on the Judiciary in the United States Constitution. Rather, the Senate is in the Constitution along with the Senate’s responsibility of advice and consent on such presidential nominations. So, why is there such a committee? Well, it’s because going back to the early 19th century, the United States Senate understood that it would have to divide up different areas of its work in order to advance the legislation to the floor of the United States Senate.

The committee on the judiciary was established in the year 1816 by the United States Senate. Most Americans did not care then–most Americans actually do not know or care now–but they should because in our contemporary moment in the United States, the role of the federal judiciary is now so important that every single American has much at stake in this entire process.

Part II

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America’s political left decries outcome-based law, yet fails to acknowledge their role in pioneering this approach

Earlier I mentioned that everything seemed to change in the 1980s. The confirmation process became radically and dangerously politicized. I mentioned that this came with television but it also came with something very different. If you go back to the 1980s, the story begins to unfold. In 1986, then-president Ronald Reagan nominated Antonin Scalia to the United States Supreme Court. He was affirmed unanimously by the United States Senate. No one really knew anything about his hearings. It was an internal matter to the Senate, but the announcement was made that the Senate had voted to confirm this justice unanimously.

The very next year in 1987, President Reagan nominated Robert Bork, and other former federal judge, former solicitor general of the United States also to the United States Supreme Court, but eventually Bork was not confirmed by the United States Senate. His hearings before the committee on the judiciary turned out to be a major turning point in American history. Why? Because Judge Bork was the very first nominee made by a conservative president of the United States who represented a threat to the liberal direction the court had taken ever since the late 1940s.

More specifically Robert Bork was then the most ardent and eloquent defender of what was known as originalism: the understanding that the Constitution is to be interpreted simply in terms of its words, its sentences, its grammar, its historical context, and the original intention–that’s where the word “originalist” comes from–of those who wrote the constitution. That is a fundamentally conservative understanding of how we are to interpret any text, but most importantly, an authoritative text like the United States Constitution, which is the very constitutional basis for our system of government.

Those on the liberal side of American culture, morality, and politics understood that Robert Bork represented the absolute rejection of how they had re-envisioned the courts. He represented the absolute rejection of the very logic of interpreting the Constitution as this so-called living document that led to the Supreme Court along with lower courts finding rights within the US Constitution that were clearly not there in the text, not there in the words, not there in the original intention of those who framed the Constitution.

It’s interesting to note that the chairman of the Judiciary Committee in 1987 was none other than then Delaware Senator Joseph Biden, who later became Vice President of the United States under Barack Obama. Biden was the central figure of the United States Senate in politicizing the hearings. He understood that a great debate over the interpretation of the Constitution was at stake, but he as chairman also allowed Bork to be largely destroyed by ad hominem, very personal arguments.

Before turning to those arguments and the larger context of the great constitutional battle at stake it is important to recognize that when the Bork nomination failed president Reagan then turned to a judge who could gain confirmation by the senate, again overwhelmingly, and that was justice Anthony Kennedy, who turned out to be the so-called swing vote for the better part of the last twenty years on the court.

Of course, that points to the historical importance of what’s going on here. Because when you’re looking at this nomination hearing for Judge Brett Kavanaugh, you’re talking about President Trump’s nominee to fill the seat vacated by the retirement of none other than Justice Anthony Kennedy. Brett Kavanaugh, President Trump’s nominee to the Supreme Court is by any estimation extremely well qualified for this position, a graduate of Yale University, the Yale Law School. He previously clerked for several federal judges including again Justice Anthony Kennedy of the United States Supreme Court. He served as a counsel on the staff of Ken Starr, the special prosecutor from the Clinton years, and eventually he served in a critical role in the administration of President George W. Bush as staff secretary.

So, what kind of anticipation is built into this confirmation hearings? Well, one indication came from the Left in an editorial in The New York Times published on September the 1st. The editorial board wrote this: “In the absence of a direct meteor strike, Brett Kavanaugh is nearly certain to be the next associate Justice of the Supreme Court of the United States.” The editors went on to say, “Yes, he’ll have to suffer some formalities first like sitting solemnly for a few days before the Senate Judiciary Committee whose Republican leadership,” they wrote, “has fast-tracked his nomination and scheduled confirmation hearings. There Judge Kavanaugh,” they write, “President Trump’s second pick for the high court, will endure what justice Elena Kagan once described as ‘a vapid and hollow charade.’” The Times board then summarize the charade in this way: “Days of tedious predigested speeches by senators followed by carefully-scripted questions, either softballs the nominees can hit out of the park of changeups he won’t bother to swing at.”

Now this editorial in The New York Times rather bitterly goes on paragraph after paragraph, but there’s no acknowledgement from the editors of The New York Times that it was their side of the political and legal equation that brought about this reality. The hearings were politicized perhaps inevitably, but there’s no question that the turning point came in those confirmation hearings for a conservative nominee, Robert Bork. And from that point onwards, every single minute of these hearings televised before the American public has become something of the very kind of theater that now Justice Elena Kagan was dismissing as a charade.

By the way, it’s also not acknowledged in that editorial that current Justice Elena Kagan hadn’t made those comments 15 years before her own nomination to the nation’s highest court. It is at least historically significant to point out that when it came to her own hearings, Justice Kagan did not refer to the hearings as a vapid and hallow charade.

The editors are making some very keen observations when they write, “The lock-step partisan behavior is a natural consequence of the increasing polarization of American politics which is bad enough,” said the paper. “When it infects the elected branches, it’s far more damaging,” said the editors. “When it influences the makeup of the judiciary whose legitimacy depends entirely on the public’s confidence that it can serve as an impartial arbiter of our most intractable disputes.” The next sentence: “Now as a result of brazenly partisan maneuvering, the Supreme Court is on the cusp of having a solid right-wing majority that could last for decades.”

Now perhaps you noticed the slight of hand in that single paragraph of this editorial. The editors began by saying that the current situation is untenable because the court is politicized, but then it goes on to complain that the political outcome of this nomination is what the editors do not want to see happen. That’s exactly what’s going on here. Every one recognizes that this process has become politicized, but there’s no acknowledgement here that the court and the confirmation process were politicized by those who have increasingly turned to the court from the left as a legislature rather than as the traditional judiciary that was intended by the framers of the US Constitution.

When you are talking about outcome-based goal, that’s exactly what we’re looking at here. In the United States right now at this moment we have people on both sides of the partisan, moral and legal divide who are really demanding outcomes. They’re making their argument that a nominee must agree with me on the outcome of certain cases even before they arrive at the US Supreme Court.

There can be no question historically that it was the Left in the United States that pioneered this outcome-based law, but in response, the Right has sometimes itself demanded outcome-based law. So, as you’re looking to the question, just to give one example of abortion, both sides are looking for justices they can count on, either to defend the so-called abortion right that was enshrined in the 1973 Roe V. Weigh decision, or will defend the rights of the unborn, and thus oppose the very existence of this right as a constitutional fiction. But before we dismiss outcome-based law entirely, we need to recognize that we have now reached the point where understanding judicial philosophy is, if not always, then generally an indication of what the outcome would be.

So, again just take the issue of abortion. In order to find a so-called right to abortion in the US Constitution, you have to follow a line of the interpretation of the text of the Constitution that says we are not bound by the words, we’re not bound by the sentences, we’re not bound by the fact that the framers of the Constitution clearly did not consider abortion any form of a right whatsoever. The Constitution has claimed to be a living document that is reinterpreted in light of any contemporary moments needs.

On the other hand, if you have someone who is a strict constructionist that judge will have to look at the same text of the Constitution and say, “There’s a great deal here. There is more not here than is here. What is not here is any so-called right to abortion.” It’s also really clear that given that opening sentence in the New York’s Times editorial, the Left really understands that unless something unexpected and unprecedented happens, something perhaps along the lines of what the editors call a direct meteor strike, Judge Kavanaugh is likely to be confirmed to the Supreme Court. Why?

Well, there’s a long story here. But it comes down more than anything else to the fact that there is a Republican majority in the United States Senate. Another dimension to this story is the fact that when the Senate was in Democratic hands under then Senator Harry Reid as majority leader the filibuster rule was eliminated for federal court appointments. And the Republicans simply extended that to the United States Supreme Court. All that means is that fifty-one Republican votes will now confirm a nominee to the United States Supreme Court.

Writing even before President Trump nominated Brett Kavanaugh, Linda Greenhouse who covered the Supreme Court for The New York Times for decades wrote, “The Senate confirmation process has become so degraded that to call it a joke is way too kind.”

Well if so, we need to ask the question: why? Who is responsible for this development, and why in our contemporary context could it be this way and not some other way? And the answer is because the issues are now also so politicized. Americans are so polarized.

Part III

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What should Christians be watching for in this week’s confirmation hearings?

So, what should Christians be listening for or watching for in the confirmation hearings? Well, just consider everything we have offered here as context and then listen to what actually happens. Those set speeches given by senators are not unimportant. They are likely to signal how everyone of these senators understands the role of the court, and the proper means of interpreting the US Constitution. Then listen not only to the senators, listen to the opening statements made by the nominee, Judge Brett Kavanaugh. He is likely to set out in a very real form his judicial philosophy. Now on both sides there’s likely to be an avoidance of certain words and certain issues.

It’s also important to recognize that as you watch the hearings, the Democrats are going to try to entrap Judge Kavanaugh in some kind of mess, some kind of question getting him to say or to deny something that would cause some kind of political fall out. On the Republican’s side, it’s likely that Republican enators are going to try to offer these hearings as an occasion to remind the nation of what really is at stake in the interpretation of the Constitution. Those Republican senators beginning with chairman Grassley are likely to try to make the issue the overwhelming credentials of Judge Kavanaugh and the Continuation of a conservative interpretation of the US Constitution as a text, a text of words and sentences and grammar.

Listen for how everyone in this conversation, in the hearing process uses the word rights. What does the senator or what does the nominee mean when the word rights is invoked? Is this something that is simply an affirmation of what God has given every single human being in creation? Is it a set of rights that are revealed in nature even as the declaration of independence declared? Or are these rights simply political realities put in place by politicians, or perhaps constructed by judges?

If so, we should note there is no limit to what kind of rights might be created, but the downside to this, to state it bluntly is that these rights have no status whatsoever beyond political opinion, decision or historical contingency. That’s to say, if these rights are simply invented, then they can be just as quickly un-invented.

Also watch for another phenomenon. Back in the hearings with Judge Bork, it’s important to recognize that one of the most important Democratic senators both on the committee and in the Senate at the time that was the late democratic Senator Ted Kennedy from Massachusets, he rejected Judge Bork for nomination to the court even before the confirmation hearings were held; before a single word had been said. Why?

Because then Senator Kennedy will have to write over the entire process of the Constitution, he almost never cited it in this context, but rather he warned of the outcomes that he warned would imperil Americans if Judge Bork were to sit on the nation’s highest court.

Now what’s important there is jumping over the issue of the interpretation of the Constitution. What does that tell you? It tells you that what is really the concern of a senator would speak that way is not the Constitution, nor the historic role of the United States Supreme Court. But simply political outcomes and goals that are not going to be possible by legislation. Thus the increasing turn by the Left to the courts.

Notice something else and that will be that so many currently on the Democratic side of the equation have already indicated that they will vote against against Judge Kavanaugh, and again this is before he says a single word. It’s because the hearings themselves are really not so much the issue. But that doesn’t mean they’re not important, as I’ve tried to make clear today, they are very important. But the most important aspect of these hearings may not be known to us yet. Which is why we have to pay close attention and why you can count on the fact that America’s public discourse especially in the media and in politics over this week will be largely obsessed with these hearings. It’s not because they’re making more of them than is due, it’s because they understand exactly what is at stake.

Part IV

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After outcry from Christian communities, California legislator pulls bill that would have threatened religious liberty

Finally, out of California a bit of good news, if only temporary good news, as Melanie Mason reports for the Los Angeles Times and I quote the headline, “California legislator shelves bill to ban paid gay conversion therapy for adults.” The importance of this story is that the now infamous California Assembly Bill 2943 has been withdrawn at least for now. And the biggest issue there is not just that the legislation would have covered so-called conversion therapy when it comes to adults, it’s that it would have been a major violation of religious liberty applying not only to those in the therapeutic community or the medical establishment but also to churches and ministries. Legislative authorities in California warned that the legislation would make illegal a church selling in its own bookstore a book that would advocate a biblical understanding of gender, marriage and human sexuality.

What makes the story even more interesting is that Assembly Bill 2943 was barreling through the very overwhelmingly LGBTQ-friendly California assembly before it was withdrawn at the last minute by its sponsor, openly gay assembly man Evan Low, and the question is why? And in this case, it is important to know that the assembly man indicated that he had shelved the bill for now because he was concerned about the outcry from the different Christian communities there in California. “The assembly man isn’t withdrawing his interest in the bill nor his longterm legislative goals.” As he said, “I believe we are on the side of the angels on this issue.”

But this does tell us not only that this battle is going to be ongoing for a very long time, it tells us that speaking openly about the danger of this kind of legislation can have an effect when religious liberty is in the cross hairs. It is very important that Christians speak up. And Christians in California did. Here again is proof positive that speaking for the truth can make a difference.