I’m inclined to agree with Charles Lane’s assessment of the confirmation process, as expressed in his recent Washington Post column:
With the grotesque spectacle now playing out on the Senate Judiciary Committee, the United States has reached a breaking point with respect to both the confirmation process and the role of the federal judiciary in our government.
The former is dysfunctional because the latter can no longer bear the weight of all the demands a divided society has placed upon it.
We can continue trying to staff the courts based on which party can manage, through fair means or foul, to get a temporary upper hand in the Senate. We can go from Estrada to Merrick Garland to Brett M. Kavanaugh to whatever payback Republicans feel justified in dishing out to the next Democratic nominee.
Down that road lies the complete politicization of the federal courts and, accordingly, the corruption of American government as a whole.
Or we can find institutional and cultural means to lower the stakes in judicial confirmations. If a life-tenured appointment to the Supreme Court is too important to entrust to someone of the opposite party, then perhaps life tenure on the federal courts should go. Originally conceived as a means of insulating judges from political pressure, under contemporary conditions (including increased life spans) it has morphed into the opposite.
Having Supreme Court justices stand for election, Mr. Lane’s proposal, requires amending the Constitution which is why it won’t happen. If Congress had the courage to amend the Constitution we wouldn’t be in the fix we’re already in. Another completely Constitutional means for reversing course would be for Congress to limit the appellate jurisdiction of the Supreme Court. That would enable the Court to continue to hear cases within their primary jurisdiction but ban them from broadening that jurisdiction into extra-constitutional areas. That won’t be done for the same reason Mr. Lane asserts the heat on the confirmation process has grown in the first place: the desire of the members of Congress to effect their will by undemocratic means.
The confirmation process will remain broken along with our politics. It’s a positive feedback loop that doesn’t lead anywhere good.
“Down that road lies the complete politicization of the federal courts and, accordingly, the corruption of American government as a whole.â€
Mr Van Winkle seems to be a couple decades behind.
This reminds me of your observations that we’ve been in a trade war for decades, we just haven’t engaged.
Kankakee?
https://www.zerohedge.com/news/2018-09-24/millennials-are-flocking-cheap-rust-belt-cities
Having destroyed any and all authentically democratic institutions in the United States, politicians and their Masters are not going to agree to restoring one.
“Mr Van Winkle seems to be a couple decades behind.”
Going to have to agree with Drew. We can argue the timing a little bit, but the courts were politicized well before this current trouble.
Also, the rust belt and millennial story is interesting. Housing in some of those areas is incredibly cheap. We bought a house 1/2 block away from our critical access hospital in coal country because there were no hotels within 30 minutes of the place and the hospital had no call rooms. Paid $50,000 for it. Probably spent another 50k rehabbing it, though I did a fair bit of that. (Good excuse to buy new power tools!) It would have been very livable for people on a tight budget w/o any or minimal work. The internet there is very good and reliable. I wonder if we end up seeing more people who are able to work from home moving in?
Steve
“Mr Van Winkle seems to be a couple decades behind.”
The thing is that it can get a lot worse. Think competing armed mobs fighting in the streets outside the courthouse attempting to forcibly install “their” justice.
We’re not in Banana Republic territory yet, but we’re heading that direction. We might have an opportunity to stop if the American people demand it. But the American people are perhaps less organized than they ever have been – atomized and propagandized.
We’re not millennials, but we looked at some rust belt areas to settle. They have a lot to offer, but ultimately the weather and family brought us back to Colorado.
A lot of professional and services work is moving to telecommuting. Depending on how pervasive that trend becomes, it could have a huge impact on where and how Americans live.
“atomized and propagandized.”
Especially this. At a time when we have the possibility of more communication than ever, it really seems as though it is more limited and radicalized than ever. It still boggles my mind that people believe that the politicians on their team never lie. That the other team has all of the lawyers and that is how they play dirty. That the politicians on the other side have all of the scandals, and the ones on their side are fake news. I just don’t know where the drive to change things would come from. If started, how do you keep it from being taken over?
Steve
A small relative number of American news-nerds are polarized. Not nearly a majority. The majority think the circumstances, the parties and the system itself are Grade A Bullshit.
Ben,
I agree with that. The problem is that small minority have outsize control of our political parties and therefore our government.
I already gave my proposal to reform the confirmation process for Judges.
The Supreme court and the judiciary are hills worth dying for because American constitutional order assumes judicial review; i.e. the Judiciary has the last word on all laws. That’s not to say its the only way; the UK is other great tradition of democracy and it subscribes to parliamentary supremacy – i.e. the Legislature is supreme and the courts are not to question the actions of parliament. But the UK has developed a whole series of “conventions”; unwritten rules that everyone follows (like free votes on “social legislation” involving controversial topics, or the house of lords will not vote down any laws based on a government’s campaign promise). And its works because they have developed a culture that everyone self-polices their behavior.
That is the key, if the US is to rely on Judicial review less and make the Supreme Court less a matter of life and death, then Americans will have to develop a culture of resolving differences between themselves outside of the courts.
CuriousOnlooker,
No one is forcing doctors to perform abortions. It’s the Christian Right that can’t get along with medicine. Want to reduce the stakes? Stop fighting against women and science.
We Are Living Nineteen Eighty-Four is a comprehensive look at how the Kavanaugh confirmation hearings are being seen by those declaring opposition to the tactics employed by the forces representing “the opposition.”Â
 “The problem, of course, was that, under traditional notions of jurisprudence, Ford’s allegations simply were not provable. But America soon discovered that civic and government norms no longer follow the Western legal tradition. In Orwellian terms, Kavanaugh was now at the mercy of the state. He was tagged with sexual battery at first by an anonymous accuser, and then upon revelation of her identity, by a left-wing, political activist psychology professor and her more left-wing, more politically active lawyer.”
As an update, one of Ford’s most recent attorneys is again balking at the format of the hearing she is supposed to want to be present for this Thursday. Some people are now comically musing she should already be in a car, traveling east, as one of her litany of concerns was she didn’t want to fly.  Oh well…. Â
” “The problem, of course, was that, under traditional notions of jurisprudence, Ford’s allegations simply were not provable. ”
As has been pointed out a million times now, this is not a court hearing. An accusation has been made. Now another. There will be hearings. Kavanaugh has already been all over the news to express his side, and he should have his time at a hearing. Ford should also have her time. Then Congress chooses.
Steve
Oh Jan give it up. This isn’t a conspiracy against him. When Kavanaugh was nominated, people who he went to Yale started emailing each other about the incident with Deborah Ramirez. Was Soros paying them back then? Or maybe Jane Mayer just made that up. That doesn’t mean it happened. Maybe it was a rumor they all remembered. But nobody spread that rumor about Neil Gorsuch. Whoever Kavanaugh was back then, he’s a coward now for letting himself having been portrayed as this goody two shoes who liked sports and carpooling. He seems to be a contemptibly dishonest person if that was what he was comfortable with.
“But nobody spread that rumor about Neil Gorsuch.â€
Because Republicans don’t behave like common pond scum.
Maybe not like pond scum, but worse?
https://www.washingtonpost.com/news/post-nation/wp/2017/11/20/former-oklahoma-state-senator-admits-to-child-sex-trafficking-while-in-office/?utm_term=.0cd011d58123
The fact is that Democrats did not make any such claims about Goresuch. If they just wanted to make stuff up, he was the one to go after. They didn’t. They also did to it with Roberts, or Alito. It is also a fact that if you want to look at scummy behavior, there is no shortage on the part of Republicans.
This is one of the things that fascinates me about conservatives. Someone like Drew is obviously very bright, probably smarter than I am, but yet he deludes himself into thinking that his party is somehow morally superior. I can see believing that your party has better ideas or better policies, but if you follow the news at all, there is never a shortage of politicians in both parties who behave badly. For sure, there are liberals who believe that their party is morally superior, but that seems to mostly center around stuff like Republicans separating children from their families, or Republicans wanting to force women to carry children to term. I really don’t think that I see very often, it does happen occasionally, a liberal claiming that lawmakers on their teams have never broken laws and done morally reprehensible things. I think this is where a lot of the Kavanaugh stuff is coming from. Conservatives really do believe the guys on their team are not sinners. The guys on the other team are awful sinners. I just can’t believe how much willful ignorance it takes to believe that.
Steve
“But nobody spread that rumor about Neil Gorsuch. ”
Gorsuch was replacing Scalia, it didn’t change the balance on the court. The Democrats couldn’t do much to stop it – Trump would just nominate someone else. Thus there wasn’t a huge motivation to nuke his nomination.
Kavanaugh is different because he’s replacing Kennedy. The left views Kavanaugh’s nomination as existential, so there was a lot more motivation to do whatever possible to prevent his nomination. And, because this is an election year and due to the timing of Kennedy’s retirement, a strategy designed to prevent any nominee from being confirmed until after the election became viable.
So Democrats are a lot more motivated which explains why staffers are pouring through yearbooks and going to Yale to help women recover 35-year-old memories. They certainly could have done that with Gorsuch, but didn’t.
Just for the record, I like people. My list of “pond scum” is confined to genuine sh!tbags like child molesters and similar ilk.
But I hate both parties. They are wrecking this country. I don’t hate the people in them, but am opposed to much of what they do collectively.
“Gorsuch was replacing Scalia, it didn’t change the balance on the court. ”
Same argument mostly goes for Kavanaugh. If he doesn’t get confirmed, they just bring up the next conservative who will be willing to make abortion illegal. If McConnell was wiling to not have a hearing on Garland, he will be willing to pass someone in the lame duck session. I guess there is the tiny chance that the GOP loses the Senate, but not very likely. Still, conservatives seem to believe, at least it is what they say, that part of the goal is to leave Kavanaugh smeared even if he is confirmed. Why not do that to Goresuch? Or Roberts or Alito?
I don’t actually like either party, I just think the GOP is more toxic right now. I also think that the parties have been actively shaped and pounded into what they are by the think tanks and partisan media on both sides, plus the wealthy who control the media on both sides, as well as the politicians. I hope there is a special lace in hell for the Michael Moore’s and Rush Limbaugh’s of the world.
Steve
Andy,
The Democratic Party didn’t start emailing about Kavanaugh’s behavior at Yale and they didn’t send a letter to Diane Feinstein about what happened in 1982. Both incidents are very similar–a man sexually assaults a woman in front of others who are laughing and cheering him on. This is not normal behavior, and it’s not even boys will be boys. This isn’t about a horny teenage boy pressuring a teenage girl into going further than she wants. That conservatives aren’t getting that is very disturbing.
Ilya Somin with one of the sanest things I’ve read this crazy week:
https://reason.com/volokh/2018/09/25/partisan-bias-motivated-reasoning-and-th
FWIW Steve, what you wrote about Drew above is almost exactly the way I’ve come to view you (substituting which party you see as havibg greater moral degeneracy.)
As for why things have amped up with Kavanaugh, what I see is that Kennedy has been viewed as the swing vote (I think this analysis is wrong because Roberts will now be the center, not Kennedy’s replacement- but nonetheless people think this seat will determine whether or not abortion rulings change.
In addition-midterms have raised the stakes, and the MeToo movement has created new opportunities.
The Democrat Party is an ideological socialist party with a dominant communist wing (the Frankfurt School version). They are adamant about setting up a communist dictatorship in this country, and they think they have the power to do it now. They will not compromise or negotiate anything. All decisions now are the result of raw power.
It is likely that the Democrats will resort to widespread violence to achieve their goals in the near future. Turchin thinks it will happen in the early 2020’s, but he is an optimist. I think the 2020 election will see political violence on a scale not seen since the eve of the Civil War.
CStanley- Really? I have made the case that Democrats are morally superior just because they are Democrats? That is not what I think and try to always say that I think both parties have about an equal number of people are crooks and morally rotten. Maybe i have been getting carried away.
Steve
@steve….
I believe that you really do try to be even handed but yes, it really does come across to me that your knee jerk reaction is to see a lot more corruption and malfeasance on the GOP side, and that you see GOP voters as though we are blind to it while not calling out Democrat voters for responding to blatant manipulation by politicians on the left.
It may be because of the forum. Dave is the most even handed blogger I’ve read. I don’t always agree with where he comes down on things but he definitely doesn’t blind himself to things on one side or the other. From my recollection, you often seem to push back when he points out corruption by the left but agree whenever the right is the target of criticism.
My own view if that the rot is pervasive but I do think that currently the left controls a lot more institutions but doesn’t control the branches of government, so they have a lot of behind the scenes power even as they grapple for legitimate political power. I think that’s a recipe for disaster, and I think we’re seeing it play out right now.
Also @steve, I’m being sincere, not trying to be an ass about seeing bias. I suspect IRL I’d find more common ground with you than I do from posts here.
Oh, and I meant to add that I enjoy reading your comments about your professional life because I admire your dedication and passion for helping make healthcare better.
CStanley- Thanks for your feedback and honesty. It is way too easy to get caught up in the moment and go overboard. I usually try to apologize if I do that. I would agree that I am much more anti-GOP. Kind of like the reformed addict. Grew up in a Bircher household and have family that send me emails with every right wing conspiracy theory being floated. The funny thing is that when I vote I just split my vote in half, unless I actually know one of the local people really well. Only do it differently with POTUS vote where I just vote against whomever I think is worse.
Steve