BIDLACK | Senate rightly ponders the politics of presidential picks

Author: Hal Bidlack - July 17, 2018 - Updated: July 17, 2018

Hal Bidlack
Hal Bidlack

Way back in the last century, I was a young captain fresh into an assignment teaching political science at the U.S. Air Force Academy in Colorado Springs. It was a great assignment to be sure – smart students, wonderful colleagues, and a few perks. Among these perks was the opportunity to attend a conference every year that would enhance one’s intellectual development and skills as a teacher. Which is how I found myself in D.C., at the annual meeting of the Federalist Society.

If you haven’t heard of the Federalist Society, it’s worth a google search. To say they are a conservative group is both not quite accurate as well as a bit understated. The society is mostly interested in thwarting what they see as a liberal bias in law schools and the legal profession. Now, there are lots of arguments to be had on the merits of their arguments, and I must say, they were very nice people and the group is clearly made up of very bright people. But there is also a streak of zealotry there that I’m sure they would deny. Indeed, most “strict constructionists” on the Constitution have a fairly well-developed hypocrisy gland, which allows them to apply a version of original intent when it is convenient, while ignoring their own judicial activism when it is not.

I was an odd duck during my military career, politically and otherwise. My usual joke was that in grad school I was the right-wing nut job and within the officer corps I was the left-wing nutjob, only depending on which other nuts surrounded me. I was and remain a moderate to a bit conservative Democrat. I think that that, combined with my usual promptness in getting my columns in on time, made my editor want me to write for Colorado Politics (Ed: it was mostly the promptness).

And so as that odd duck, I went into the keynote presentation at the Federalist Society conference with my eyes and ears open to hear the insights and wisdom of a gent named Robert Bork. Judge Bork (also worth a google if you don’t remember him) gave his talk, and then after allowed people to line up to get copies of his most recent book signed as well as to ask a quick question. I was in the latter category, and when I reached the front of the line, I asked him about the role of politics and partisanship in Supreme Court nominations, something he was pretty darn familiar with.

Specifically, I asked him why – given that a president selects a SCOTUS nominee on the basis of political point of view – why was it somehow seen as “dirty” for the Senate to evaluate the candidate by political perspective as well? You see, in the before (Trump) time, every president would select a SCOTUS nominee based on the president’s point of view but would then issue a statement urging the Senate to “put politics aside and judge the nominee only on his or her merit.”

I was a bit surprised and frankly, very impressed, by Judge Bork’s response. He said it was entirely reasonable for the Senate to take politics and political outlook into consideration when evaluating a nominee. In other words, he acknowledged the full and proper role of the Senate in considering the entirety of a nominee’s history and potential future rulings from the highest court in the land. Impressive insight, I believe, from a man from whom some bitterness might well be expected. I respected Judge Bork for that, even as I disagreed with him on most everything else, until the day he died.

Which brings us to Judge Brent Kavanaugh…

Frankly, the Democrats blew it last time, when they allowed the possessor of the largest hypocrisy gland in the Senate – Mitch McConnell – to blow up the filibuster for SCOTUS nominees over now-Justice Gorsuch. This leaves the Dems in a much weaker position now with Kavanaugh.  And that is unfortunate, given Kavanaugh’s oddly changing views on whether a sitting president could be subpoenaed or even investigated for a criminal act. He held that Bill Clinton could be, but more recently wrote that he had changed his mind, and now a sitting president could not be. I’m guessing that change of heart might have influenced Mr. Trump just a wee bit or so?

But at least according to the late Judge Bork, this political flip-flop by Kavanaugh can and should be legitimately addressed in his hearing. I’m not optimistic that he will be stopped, but I can’t help but think of the time Robert Bork and I had a chat. So, go for it Democrats. It’s a fight worth fighting.

Hal Bidlack

Hal Bidlack

Hal Bidlack is a retired professor of political science and a retired Air Force lieutenant colonel who taught more than 17 years at the U.S. Air Force Academy in Colorado Springs.