Opinion

SLOAN | What the left really fears is Kavanaugh won’t legislate from the bench

Author: Kelly Sloan - July 23, 2018 - Updated: July 25, 2018

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Kelly Sloan

The nation is preparing for the confirmation hearings of Brett Kavanaugh to serve on the Supreme Court, and if the histrionics emanating from the left are any indication, it will be a Borking worthy of the original.

Since the moment Justice Anthony Kennedy announced his retirement the country has been subject to a barrage of apocalyptic predictions, each competing to outdo the previous one in breadth of outlandishness.

Listen to this: “We’re looking at a destruction of the Constitution of the United States.” (Kamala Harris, actual U.S. Senator for California); “…as R.E.M. once put it, ‘the end of the world as we know it.’” (Nina Totenberg, legal affairs correspondent for National Public Radio); “The nomination of Judge Brett Kavanaugh will threaten the lives of millions of Americans for decades to come,” (Terry McAuliffe, actual former governor of Virginia), and so on.

Good heavens. To hear the litany of apocalyptic horrors to which the liberals ascribe the nomination, never mind the confirmation, of Judge Kavanaugh, you would think he was intent on toppling the Statue of Liberty and reinstating burning at the stake on his first day on the bench.

The fear is ostensibly over what a court with an Originalist majority may do, beginning, of course, with overturning the only really important law in America today, Roe vs. Wade. After that, one supposes, the floodgates will have been opened to impose the worst sort of dystopian order one could imagine or find in their favorite Hollywood production.

The real fear, of course, is the loss of the Supreme Court as a tool for effecting political and social change by circumventing the legislative process. The court has, over the past half-century or so, established itself as the moral arbiter of the nation, taking it upon itself to decree to the American people what the law and the Constitution ought to say, rather than simply passing legal judgement on a particular law’s constitutional alignment. It has expanded its own prerogative to the point where it is viewed by many in the nation with an almost religious reverence, having steadily usurped authority from both the executive and (predominantly) legislative branches.

It was not exactly intended to be this way. Alexander Hamilton, whose credentials for discerning the original intent of the Founders is rather well established, wrote this in The Federalist #78:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them… The judiciary… has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

Hamilton may have let naivete get a little away from him there; but it is difficult to imagine him countenancing an institution like the latter-day Supreme Court, in which judicial formulation, deus ex machina, of hitherto undiscovered “rights” has become not only commonplace but expected, even demanded.

The basis behind the concept of “original intent” or “strict construction” is that the Constitution, as the fundamental law of the land, is a binding social compact providing for the maintenance of order in society – the mechanism through which we as a people agree to govern ourselves and live in peace. As such, it necessarily maintains a character of permanence and continuity. It must be receptive to change, of course, via the proper procedures; but if permitted to become too elastic its binds and purpose erode.

The principle characteristic, then, of the conservative, originalist justice who populates left-wing nightmares, is self-restraint – the recognition that his or her role is to interpret, not beget law; the philosophically bound willingness to relinquish power back to Congress or the states; and the ability to know when to say that such-and-such issue is none of the Court’s business.  Paradoxically, the frightful scenarios for which liberals are banging the tocsin over Kavanaugh’s nomination presuppose a virtually omnipotent Supreme Court, one which rules over its subjects like a panel of nine Caesar’s. In other words, the type of Court the left has carefully built, and which it dreads losing.

Kelly Sloan

Kelly Sloan

Kelly Sloan is a political and public affairs consultant and recovering journalist based in Denver. He is also an energy and environmental policy fellow at Centennial Institute.