This article first appeared on Real Clear Politics.
As a former member of the Senate Judiciary Committee, I participated in four Supreme Court confirmation hearings (for John Roberts, Samuel Alito, Sonia Sotomayor and Elena Kagan). None came close to the divisive and circus-like atmosphere the nation has witnessed during the confirmation hearings for Judge Brett Kavanaugh.
Still, in the midst of the circus, two quiet and enduring questions about American first principles remain unanswered that are critically important for future generations.
First, it’s important to ask why both sides treat Supreme Court confirmation hearings as existential, life-and-death struggles. The reality is lifetime appointments to the Supreme Court feel like lifetime prison sentences for those of the opposing ideology. If either side views the stakes as incalculably high, it’s easier to understand why politicians employ the win-at-any-cost rhetoric and tactics Lindsey Graham lambasted.
In our system, the Supreme Court was never designed to be the final arbiter of every difficult and controversial question in American cultural and political life. Yet, both sides see the court as the final decider on everything from marriage to life to what kind of health insurance we can buy. The stakes were never supposed to be this high.
If the Senate wants to lower the nation’s temperature it needs to lower the stakes. The senators can do this by reapplying the timeless advice of our Founders.
As James Madison wrote in Federalist 45 in 1788, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
The Constitution’s enumerated powers don’t give the Supreme Court the vast powers it has today. The Founders wanted to focus power in the states in part because they believed it was wise to concentrate power closest to the people having disagreements. Our Founders didn’t have a naïve view of what we call “polarization” today. They viewed passionate debate as the natural outcome of a free and prosperous society. At the same time, they feared government would become unstable if regular citizens lost the ability to resolve differences to an overbearing central government that tried to right every wrong.
If senators love the Constitution as much as they say they do, they should define total victory not as vesting power in the court, but devolving power from the court. Republicans and Democrats should embrace, not fear, democracy.
Rather than allowing nine men and women in robes to decide the nation’s most difficult questions, the Senate should confirm judges who will return that power to citizens, legislators and local government. Give regular people a voice and the opportunity to be heard. Then let citizens of good faith fight it out and resolve policy battles in legislatures and local communities. That’s the American way. As Sen. Ben Sasse, a member of the Judiciary Committee, recently wrote, looking to Supreme Court justices as “superlegislators” is at the root of the dysfunction that has been on full display throughout this process.
Second, in America you can’t be pro-victim and pro-justice and confused about the rule of law and the presumption of innocence. In our system, the accused is innocent until proven guilty. The alternative to the rule of law is either the rule of rulers or mob rule.
In the rule of rulers, each new dictator or regime gets to write new rules favorable to that regime. In mob rule, truth gives way to frenzy. Justice isn’t determined by facts but by whatever side of the mob can scream the loudest or intimidate most effectively. The Senate exists to protect all Americans, especially political minorities, from tyrannical rulers and mobs.
The pursuit of justice requires humility, honesty and intellectual integrity. The late Sen. Daniel Patrick Moynihan often said that senators are entitled to their own opinions, but not their own facts. Too many senators have lost touch with the Moynihan rule. For instance, Cory Booker praised Dr. Christine Blasey Ford for coming “to tell your truth.” Booker is missing a key point. In the American system there is not her truth or his truth. There is only the truth. In a nation governed by the rule of laws – rather than the whims of rulers or mobs – facts, evidence and objective reality are paramount. No one is above the law. Both sides submit to what facts, objective reality and truth declare.
The Senate is scheduled to vote on Kavanaugh’s nomination in a few days. The week’s delay for an FBI investigation into allegations against Kavanaugh may or may not shed any light on the truth. But the delay will certainly give senators time reflect on the first principles that are at stake for our country.