How We Got Here: The Kavanaugh Confirmation (Pt. 1)
For the last month the nation has been overwhelmed by the confirmation of Supreme Court justice Brett Kavanaugh. This is because for many it is a critical point in US political and legal history which will impact America for generations to come. The disagreement that has seemingly torn America apart at the seams revolves around exactly what that impact of his placement on the highest court will be. For his supporters, Kavanaugh’s successful confirmation is the apex of a fundamental shift of the US legal system to the right. It also represents completion of the most important political goal of the current administration, justifying for some whatever transgressions the president may have committed before or during his presidency. For detractors Kavanaugh’s confirmation lays the foundation for inevitable reversals of established social rights and protections. As a result, there is significant fear and anxiety on the left regarding the short and long-term imposition of a conservative culture of justice in America.
There is however one area in which both the right and the left are remarkably in complete agreement: the confirmation process itself is all but broken. The politicization of the nomination of Merrick Garland and the confirmation of Brett Kavanaugh has not just been a matter of too many people screaming and upsetting the game from the sidelines. The ability of both political parties to manipulate the rules has led to an increased questioning of overall legitimacy of the game itself. The result is an unprecedented decline in popular support for the US justice system at the highest levels. A significant component of the decline has been the broader struggle over the last two years between liberals and conservatives regarding control of the ‘narrative of justice’ in the country. What the Kavanaugh confirmation signified was that the process and even the narrative itself is defined politically, not by objective truth or a common understanding of the rule of law. It can be fought over and controlled, manipulated by both sides to fit what they believe to be best for America. Republicans, Democrats, Brett Kavanaugh, and Donald Trump… none of them broke the system, they only take advantage of it. It is time to recognize that the critical problems which have become evident across the highest levels of the US judicial system are the result of the separation of powers being broken. We are at this moment because the distribution of federal power ensures that politics is more important than, or at least has undue influence over, the maintenance of justice in America. If the current structure remains in place, the group in power will never be incentivized to fix the problems with the confirmation process, political manipulation of the judicial branch of government, or the broader narrative of justice in this country.
Intentions
The primary goal of the framers of the Constitution was to separate the legislative, executive, and judicial components of government power. More directly, each branch’s use of power was specifically designed to be balanced by the responsibilities and powers of the other two branches. With regards to the judicial branch, its power lay in the ability to interpret the Constitution as the basis for adjudicating disagreements over “the laws of the United States.” This was to be accomplished through the establishment of the Supreme Court and the Attorney General, the latter being fully established with the Judiciary Act of 1789. The Attorney General’s role would be one of limited importance until the era of Reconstruction, acting predominantly as a legal advisor and judicial liaison to the president and Congress. The ability of the president to nominate judges to the Supreme Court, and the Congressional responsibility to confirm those nominations, were expressly designed to act as a check on the overall power of the judicial branch itself. The purpose was to create a professional legal bureaucracy that could settle disagreements over the application of law based upon their learned interpretations of the Constitution.
The history of the US judicial system is testament to the success of the founding fathers and their intentions. They could not however have anticipated how the concepts of justice and law in America would evolve. First, the federal legal system and in fact the government itself was established before there was a recognizable American political culture. There were no political parties until the early 1800's, and many of the types of issues that are politically important at the national level today were dealt with at the local and community level when the Constitution was framed. The unique characteristics and cultures of the individual communities that made up the early United States ensured that politics was a local issue. Most of the cases heard by the Supreme Court for the first 80+ years of his existence dealt with civil law involving issues such as treaties, the establishment of new government agencies, and most importantly the adjudication of disputes between states. Perhaps the most critical development unanticipated by the founders was the increasing role the court has played in the promotion and protection of civil rights. As two thirds of the Founding Fathers were also slave-owners it is fair to conclude that they never anticipated the complete and sudden end of slavery through civil war. They certainly would not have then anticipated the need to protect the new minority population (along with an increasing number of other groups such as women, Native Americans, etc.) through the actions of the Supreme Court and broader American judicial system. They could not have foreseen how much of the Supreme Court’s history would be dominated by political disagreements over predominantly social issues like gun-control, abortion, affirmative action, and gay rights to name a few. The result is that as well designed as the federal separation of powers was, it was not designed to enable the judicial branch to avoid being manipulated for political purposes. While Americans have been aware of these issues for some time, it is the Kavanaugh confirmation process that has most recently illustrated the need for real change.
The second weakness exposed by the confirmation process, and the current relationship between the three branches of government in general, is that the concept of law enforcement was not incorporated into the founding of the judicial branch of government. The result is that no matter how objective the adjudication of cases may be, the ability to federal justice system to conduct investigations as required by circumstances is compromised by politics. For the first hundred years of the country’s existence law enforcement was very much a community concept. Americans were widely accepting of the constitutional framework that served as the foundation for the individual jurisdictions around the country. Most also believed that it was the right of individual communities to apply and enforce those laws as they saw fit. Americans today often consider it to be an historical oddity when the media reports on a crime involving some outdated local law or code. But it is essential to remember just how important the local laws were during an era in which all law enforcement was also local.
The Civil War changed everything. The prosecution of the war by the North necessitated the creation of a much stronger and more pervasive federal law enforcement system. This was due to a variety of reasons including increased criminal legal filings at the federal level, general levels of lawlessness, and the increasing role of the government in prosecuting civil crimes. This last point would come to dominate the Supreme Court docket after the war with the need to enforce Reconstruction era laws. Although the process of creating and instituting federal laws had not changed because of the war, it was very clear that the government could not rely on southern states to fully enforce the new laws. As a result, the country was confronted with the need to create a federal ability to enforce the law that superseded the rights of states to do so. The Department of Justice was established in recognition of this need but was fatally flawed due to its placement within the executive branch of government. This insured that as the government’s law enforcement capabilities evolved separately from its ability to objectively judge and apply the law. The result is a judicial system whose core principles are continually twisted, misused, and overlooked due to the ability of political forces to selectively choose when they should be applied and to whom.
Solutions
Continuing respect for the rule of law is the cornerstone of the longevity and success of the United States. Its conventions are what make all other aspects of American culture possible. Our political and economic systems are rooted not only in shared understandings of right and wrong, but our firm confidence that wrongs will be punished through enforcement of our legal system. Most importantly, our government at some level is committed to doing this for us when we are unable to do it for ourselves. It is the continuous belief in the system despite the evolutionary stumbles of the rule of law in America through slavery, genocide against Native Americans, gender and sexual discrimination, and seemingly endless corruption that only reinforces our commitment to it. Despite the hyperbole and rhetoric surrounding the Kavanaugh confirmation the system is not broken. It is however in desperate need of repair and overhaul. In part two of this analysis the argument will be made that it is time to shift the Department of Justice from the executive to judicial branch of government. For the rule of law in America to be truly blind, based only on the objective search for and application of truth, it must be removed from the political realm. While this may seem a radical shift in the separation of powers, it is in fact reestablishing the system of checks and balances that was originally intended by the Founding Fathers.
