Wednesday, Sept 5, 2018

Part I

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How the politicization of Supreme Court nominees has reached points we couldn’t have imagined just a decade ago

The action took place in a committee hearing room in the Heart Senate Office Building in Washington, D.C. That was the start of confirmation hearings for Judge Brett Kavanaugh to serve as the newest associate justice of the United States Supreme Court. It was on July the 9th that President Trump, in a White House ceremony, announced his choice of Judge Kavanaugh, currently a judge on the U.S. Circuit Court of Appeals for the District of Columbia. As we have so often noted, given the politicization of the nation’s culture and ultimately its highest court, there is a political fight now over every single seat every single time that goes back to the 1980s when President Ronald Reagan nominate Judge Robert Bork. During the hearings for the confirmation of Judge Bork, all the rules were changed.

It was at that point you have the intersection of the kind of cable news coverage that made the hearings celebrity affairs or senators and the advent of the recognition on the Left. That if there were to be a shift on the Supreme Court in a more conservative direction, that would threaten to repeal many of the games that liberals and progressives had made and knew they had made only by recourse to the courts during the 1960s and 70s. At the center of that is the example of Roe v. Wade, the Supreme Court’s decision legalizing abortion in 1973, but Robert Bork was denied his seat. Instead, the following year, Justice Anthony Kennedy took his place. It was Anthony Kennedy’s retirement announced just a few weeks ago that set the stage for President Trump to announce that he would nominate Judge Kavanaugh to take his place on the Supreme Court.

Even as we knew that the hearings that began yesterday morning would be contentious but also revealing of the deep divides in the United States, the way the hearings began was something unexpected, if not unprecedented, in the experience of the committee on the judiciary of the United States Senate. Now, consider the context for just a moment. The hearings are being held in a very formal committee hearing room in the Heart Senate Office Building. That’s very important because that context cries out the formality of the occasion and the important constitutional role played by the senate as a whole in offering advice and consent concerning presidential nominations, but even as the hearings were just beginning, the very first words came out of Chairman Charles Grassley’s mouth at that very time, democratic members of the committee sought to derail the entire process by demanding that the committee adjourn immediately.

At the same time, protest broke out in the back of the room eventually leading to the arrest of some 22 people who had been screaming and yelling, also, trying to prevent the hearing from moving forward. It did move forward, of course, but not very far. The fact that it did move forward reminds us once again that elections have consequences. This is true when electing a president of the United States, because amongst the most important to the constitutional responsibilities assigned to the president is the nomination of persons to serve in such crucial roles as those who will sit on the federal courts as judges and ultimately, who will be justices on the United States Supreme Court. Elections have consequences in both houses of congress, but in the Senate, most particularly in this context, because it is the Senate that has this responsibility of advice and consent. Thus, the fact that there is a majority of Republicans, a bare majority in the current Senate, there is the opportunity for republicans to move the process forward even over against very vocal if downright chaotic Democratic opposition.

On Tuesday’s edition of The Briefing, we sought to explain what was likely to take place in the opening day and if anything, what happened in actuality was in affirmation of the fact that everything was merely for show yesterday. Everything that was said, everything that was done, not only the protest but the speeches made by those on both sides of the parties in divide in the United States Senate on the Judiciary Committee. Senator Grassley, a man of decorum, sought to begin the hearings with that kind of formality, but all that formality began to break down and at one point, Chairman Grassley simply said that members of the committee were taking advantage of his decency. Meaning, his attempt to be even handed in the process but to keep the process moving forward.

When you look at the statements that were made yesterday, there are some really, really important observations that we should not let pass. Most importantly was the fact that when you look at every single speech made by every single democratic senator, and then you look at every single speech made by every single republican senator, there is one issue of very clear agreement. It matters massively who will sit on the nation’s highest court, but when you look at those statements, you also begin to understand something else. Even in the midst of all the politicization, all the posturing, all the attempting to speak over the nominee even over the committee room to the American people, there was an understanding that basic disagreements about our form of government, the role of the constitution, the way the constitution should be read, how rights are to be understood, clearly came to fore.

Now, it would be very easy given a great deal of the nonsense that took place yesterday to take the nonsense point by point, but that would not be very profitable. Instead, I want us to look at one crystallizing moment. That moment came rather late in the hearings yesterday. It came in the form of the speech that was given by South Carolina Republican Senator Lindsey Graham. Lindsey Graham, perhaps more than any one else on either side of the committee, got to the bottom line. He said, “Let’s be clear what’s going on here.” He said, “What’s going on here is an attempt to politically destroy a very well-qualified, unquestionably qualified, judicial nominee for the Supreme Court.” But then he turned to those on the Democratic side of the committee and stated what needed to be stated. That was this, “In almost every single one of those opening speeches, there was a criticism of Judge Kavanaugh that he would be a threat to women’s rights.” Meaning, most clearly, let’s understand a threat to abortion rights enshrined as the very orthodoxy of the democratic party in the United States.

Here’s where Senator Graham got right to the point. He said, “Your accusation is that if you are looking at this nominee, Judge Kavanaugh, you are looking at someone who has a predictable inclination if the issue of abortion were to arise before the Supreme Court, and you say that is wrong,” he said to his Democratic colleagues. However, he immediately pointed back in honesty both sides in this cultural divide, both sides in this parties on divide actually understand the issue very clearly. He pointed to the 2016 presidential election when then Democratic nominee, Hillary Clinton, herself a former United States senator stated very clearly her promise to Democratic voters that she would never nominate anyone to the federal courts specifically to the Supreme Court who would not vote to uphold Roe v. Wade. Then most tellingly, he turned to several of the Democratic members of the very same committee because it leads to three of them are often discussed as possible, if not, likely contenders for the 2020 democratic presidential nomination.

Turning to them, he said very directly, “Every single one of you, if you are to gain any traction at all towards the Democratic presidential nomination, will have to argue then the exact opposite of what you are arguing now.” He said, “That is exactly what is called hypocrisy.” Then with reference to his own effort to secure the Republican presidential nomination in 2016, he said that if they dare to conflict with the pro-abortion orthodoxy of their party, then they are likely to experience what he experienced running in the Republican primaries, as he said, “You can look forward to gaining 1% of the vote.” It’s also very interesting to look at the kind of language that journalists were reaching for yesterday trying to record and to report this unfolding story. For example, if you look at the Washington Post, John Wagner and Seung Min Kim along with Ann E. Marimow reported the story describing the opening of the hearings as a political brawl, siding senators who claimed that what was at stake was the thread of mob rule. The editorial board of the Wall Street Journal, even before the hearings began, warned that the entire process was likely to amount to what the editors called “The Kavanaugh Hazing.”

Now, it’s a very sad testimony to the point reached by our current democratic form of self-government that a hearing before the United States Senate of all things could be described as a hazing by the editorial board of one of the most influential newspapers in the nation. We can hope that today, perhaps, and the day-long hearings that are going to follow, there can be a greater game towards clarity of the issues that are really at stake. We should expect, eventually, even in the course of today’s hearings to get to the point where there is at least some effort to have a back and forth between the nominee, Judge Kavanaugh and members of the judiciary committee, but we’re not there yet. When we get there, it’s likely to get very, very interesting. Because the way that game is played is that those on the Republican side are going to try to offer opportunities for Judge Kavanaugh to speak to his most basic and fundamental judicial philosophy. Whereas, on the Democratic side, you’re likely to have almost exactly the opposite. Very little attention to the underlying judicial philosophy and a great deal more attention to the likely outcomes of that way of interpreting the constitution on the hot button issues of greatest interest to voters who bat the democratic party in elections, and most especially are likely to be motivated for the 2018 midterms and the 2020 presidential cycle.

On The Briefing tomorrow, we’ll take a look at three terms, which are almost sure the come up in the hearings today. Every one of these terms is important. All three of these terms, though related, are distinct. Tomorrow, we’ll understand why those three terms are settled law, precedent, and super-precedent, but today, we also need to look at how the politicization of this entire process has reached points that not only the framers of the Constitution could not have imagined but even members, let’s say, of the Supreme Court or of the United States Senate could not have considered just a matter of perhaps a decade or so ago. For example, the New Yorker, one of the most important magazines of elite culture in the United States ran an article that was dated August the 27th with the title, “The Bench, Big, Strong, Psyched.” This is an article trying to understand Brett Kavanaugh as a judge and as a future potential justice of the United States Supreme Court based upon his coverage of sports as a student sports writer at Yale, writing for the Yale Daily News from 1983 to 1986. Judge Kavanaugh is an avid sportsman and is very clearly acknowledged by all democrats and republicans to be an extremely knowledgeable and energetic sports fan. That probably explains why even as a student, he was writing sports columns for the campus newspaper at Yale.

As this article published in the New Yorker indicates, those who are trying to understand his judicial philosophy had been looking, not only at the over 300 cases that have been decided during the time that Judge Kavanaugh has served on the D.C. Circuit but they’re also going all the way back to his college newspaper looking at his sports columns. Zac Helfand writing for the New Yorker tells us, “Could there be hints of potential Supreme Court rulings under headlines like Ellis trounce Jaspers and hoopster, Ted West. The question he said was put to some experts, Steve Rushin, who has written for Sports Illustrated for the past three decades saw a clue in Kavanaugh’s language, “No one was ever shooting room temperature. Everyone was either blazing or ice cold.” In a single sentence, he wrote, “As torrid as Yale’s shooting has been 24 hours earlier, it was ice cold in this contest.” Rushin went on to suggest that this might indicate, “A kind of good versus evil, hot versus cold, Manichean worldview.”

Now, the longer I looked at this article and it goes on, the more I was hoping that, perhaps, it was written tongue and cheek and wink and nod form of humor coming from the New Yorker, but it’s also clear that there are deeper issues addressed in this article. The very fact of the article appeared in the New Yorker tells us that there are those who are now looking for any clue whatsoever as to how anyone who might sit on the Supreme Court might think about anything right down to the kind of temperature words that are used in sports writing as an undergraduate.

Part II

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From the left or the right, why the issues we face are too fundamental to be settled with a third way

Next, to the far deeper level of significance, we have to ask the question, where did this huge divide in the United States come from? Where did it first appear, at least in recognizable form?

One very important clue to this is to go back exactly fifty years from the year 2018. That takes us back to the year 1968. We are now looking at the half century mark since one of the most tumultuous years which serves as a hinge or a turning point, not only in America’s culture but throughout much of the world. Most importantly, in Western Europe as well. A great shift to the Left took place in so many sectors of the north Atlantic and the European cultures. It was 1968 that represented the transformation of the Democratic party. It was in 1968 that incumbent president, Lyndon Baines Johnson, withdrew from consideration for the presidential election announcing that he would not run for nor would he accept the nomination of the Democratic party. That was because he had been humiliated in the primaries by a United States senator running against the Vietnam war, which Johnson, following Kennedy, had escalated.

By the time we reached to the democratic national convention in Chicago in the summer of 1968, riots were breaking lose. Famously, the Chicago police were clashing with demonstrators both inside and outside the convention hall. The democratic party has never been the same since. The Democratic party was then shifting very much to the Left, it would eventually result in George McGovern becoming the 1972 nominee of the Democratic party, leading to a massive landslide election for the, then incumbent Republican president, Richard Nixon. Nixon’s election in 1968 points to the other side of the cultural divide. That was to that fact that in 1968, republicans began increasingly to understand the importance of issues that would now be described as being social issues or moral issues related to what would now be called, The Culture War.

Richard Nixon did not represent the full embrace of those issues, but Ronald Reagan would just 12 years later when he won the Republican nomination in 1980 and then won the presidency in a landslide. Looking back to 1968, the New York Times ran a very important opinion piece last Sunday. It’s by Michael Kazin. He once himself a member of the Left. He had been at Harvard, a member of the radical group known as the SDS or Students for a Democratic Society. Even briefly, Kazin was a member of the Weatherman, which was, there is no other way to put it, a terrorist organization in the United States. Kazin wrote an article entitled, “America’s Never Ending Culture War.” The current Georgetown, professor of history went back to 1968 explaining that virtually, everything we see in America’s cultural divide today became apparent in that crucial year of 1968. He takes his readers back to August 26th of that year and the democratic national convention when chaos and even rioting broke loose.

Looking 1968, he went on to say, “Not only do Americans continued to debate often angrily about when and how the police should use violence against our unarmed civilians, liberals and lefties, he said still battle with conservatives over most of the other big issues that rolled the nation back then. Affirmative action, the right to abortion, freedom for gays and lesbians, curves on corporate power, the environmental protection. The politics of academia and ruling by the Supreme Court, the Cheer One camp and infuriate the other.” Now, this just reminds us that all that we are looking at in August and September of 2018 did not emerge out of a vacuum. That, indeed, if you saw America 50 years ago, this very month, you’d be looking at similar lines of divide beginning. There’s a big difference between the beginning in 1968 and the point we have now reached in 2018.

The importance of Kazin’s article is to draw attention to the fact that this never ending culture war he talks about is not something that has recently emerged in the United States. It has now just reached the point which will become apparent in the hearings in Washington, D.C. this week, but those who are Christians looking at this understand that it’s not just a never ending culture war. It’s not just a disagreement over abortion or even other moral issues. It’s a basic understanding of what it means to be human, a basic understanding of what it means to affirm and to know the truth, a basic understanding of how to read an authoritative text, a basic understanding of how rights are grounded either in an objective reality which points to a creator or to something far less stable, which is exactly what we see in so much contemporary rights talk.

By the time Kazin reaches the end of his essay, he writes, “As a historian, I also know that civil wars, even cultural ones, sell them in with settlements that please both sides.” Ominously, he concludes, “Until the left or the right wins a lasting victory, America will remain a society renting too.”

Now, this is the never-ending part of the headline that tells us about the article: “America’s never-ending culture wars.” Kazin, the historian says, “It’s not that there never will be an end, but that the end is not likely to be a settlement.” Why? It is because in this article, he reflects the reality that we must understand. The issues at stake are too fundamental. They’re too important to be settled by some kind of midpoint position. There is no moderation. There is no third way. When you’re talking about human life, it’s either precious or it’s not. The unborn deserves protection or not. You can go down the list. The issues are, well, there’s that word that we’re told we’re not supposed to use these days, “binary.” Kazin understands it from the Left. Others understand it also from the Right.

In a piece published in the Liberal Magazine, The Nation, Todd Gitlin, another historian who was also back in 1968, a member of what was known as the New Left, points that if you were to look back at 1968, you would see something in addition to what Kazin pointed to. You would see, he said, “An apocalyptic confrontational spirit.” Now, what Gitlin is pointing to is the fact that those riots that took place at the Democratic National Convention in 1968 represented the sense amongst the participants that there was an apocalyptic moment that was present or at least coming very quickly. There was a judgment that was coming. Now, in the case of Gitlin and others of the New Left, it was a decidedly secular apocalypse, but it does tell us something that human beings made in God’s image as Christians understand, have a sense that something apocalyptic must be looming if issues of this importance are at stake. Confrontation is the other part of what Gitlin pointed to.

When you think about those protesters in that senate hearing room yesterday and then you think about the democratic and republican senators facing off over this question of a Supreme Court nomination, once again, the civility and decorum that you would think would mark the United States Senate gave way to open confrontation. Todd Gitlin says, “If you look back in 1968, you would see it coming.”

Part III

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Politics, animal style: In 2018, even our burgers have been politicized

But next, we have to turn to a major moral question being asked mostly in the State of California. Does America’s political divide have to divide us over hamburgers? In this case, it’s the In-N-Out hamburger chain. Just a few days ago, it was revealed that In-N-Out’s management had contributed about $25,000 to a Republican effort in the State of California. The head of the Democratic party there, the chairman, Eric Bauman, then reacted on Twitter by calling for people to avoid or boycott In-N-Out Burgers. He tweeted, “Tens of thousands of dollars donated to the California Republican Party. It’s time to boycott In-N-Out. Let Trump and his crony support these creeps, perhaps, animal style.” Referring to an off menu variant of In-N-Out’s very popular hamburger.

Well, an investigative report in the Los Angeles Times also backed up with journalism for the New York Times demonstrates that In-N-Out Burger, as a corporation, made identical gifts to both the Republican and Democratic political efforts in California. Now, the New York Times very carefully points out, this is exactly the way most major corporations work. They offer some kind of at least token political support to both of the major political parties, but when it came to the Democratic chairman in California, the fact that any dime, any penny went to the Republican effort meant that there should be boycott over hamburgers. Very quickly, the boycott began to fall apart even amongst Democrats, it appears. This was explained by Jaime Regalado, America’s professor of political science at Cal State University Los Angeles, “The stomach overrules the mind,” he said. “A cheap good tasting burger is hard to dismiss politically.”

We should note that the California Democratic party began to backtrack from the calls by its chairman to boycott In-N-Out Burgers. It’s also interesting that an editorial writer for the Los Angeles Times, Mariel Garza, wrote an article, the headline of which says it all, “Great. Now, even our burgers are political statements.” Well, yes, that’s basically where we are in 2018 in the United States because the fundamental issues are so important and the stakes are so high and the divide is so deep and so wide. Yes, virtually, everything can be politicized. If it can be, it probably will be. It’s only a matter of time.

Part IV

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Former Arizona senator Jon Kyl appointed to fill remainder of John McCain’s term. What impact will this have on the United States Senate?

Finally, returning to the United States Senate, yesterday, Arizona Governor Doug Ducey, made the announcement that former U.S. Senator, Jon Kyl, who served in the Senate from 1995 to 2013 would be appointed to fulfill Senator John McCain’s term through the next general election in the year 2020.

Kyl is widely admired both for his character and for his political conservatism. There was no doubt that this was the kind of appointment Governor Ducey could make that would lead to greater stability in both the United States Senate and in the state of Arizona. It is not unimportant that between 1995 and 2013 for almost 20 years, Kyl and McCain served together as colleagues representing Arizona in the United States Senate. In his previous three terms in the senate, Senator Kyl was known as an avid defender of the necessity of America taking on the role of leadership on the world scene. He is expected to continue that argument during the period he will serve now in the United States Senate in the place of late United States Senator John McCain. He also made the announcement yesterday that he would not be a candidate for the seat in the 2020 election.