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It’s All About Balance (Oh, And Bret Kavanaugh)

October 5, 2018

This is a post about politics that is not political. Well, that’s my plan anyway. You don’t come here for politics. You can get that many places online.

But, sometimes politics can teach us lessons about business and life. That’s my goal today. If I fail, just trust in the fact I don’t talk politics much.

Brett Kavanaugh

Unless you are someone with no connection to the internet, and no radio or newspapers. . .or any friends, you know who he is. He was nominated by the president for a position on the Supreme Court As they do for all Supreme Court nominations, Congress is required to provide “advice and consent.” So far so good.

Yeah, that’s about where it all went off the rails. I’m not going to offer an opinion on whether Bret Kavanaugh should be on the Supreme Court. That’s for those other political sites. What I want to focus on is the process and offer insights on why people are so passionate about this nomination.

Maybe it’s because Liberals will simply oppose any nominee that this president offers. And in fact some Democratic senators indicated their intention to do exactly that. Conservatives will claim that the Democrats are opposed based on the fact that he was nominated by the president as well.

It’s not true. How do I know? Justice Neil Gorsuch. He was nominated by a Republican president and fairly easily confirmed. It was largely along party lines, but a few Democrats voted for him.

Why was Gorsuch confirmed so easily and Kavanaugh is hitting so much resistance? To find the answer, we have to look back a few years. The fight isn’t really about Gorsuch and Kavanaugh, or even Merrick Garland, the judge nominated by President Obama to fill a vacant Supreme Court position. As most people know, the Republican Senate leadership utterly refused to consider Garland.

Was it because the Republicans were going to oppose all Obama nominees? No. Because Justices Sotomayer and Kagan were both nominated by President Obama and confirmed with some Republican support.

So, why Sotomayer, Kagan, Gorsuch and not Garland and Kavanaugh? It’s all about balance. As Americans we love balance in our government. It’s why the most productive periods of the past 40 years have typically been when the president was of one party and Congress was the other.

Think about it, President Obama spent most of his presidency with a Republican controlled congress. Just as President Clinton did. And President Reagan spent most of his two terms with a Democratic controlled congress. As Americans we want to balance power between the two parties. That’s why we typically change the party of the elected president every 8 years.

– Obama, Democrat, 8 years
– George W Bush, Republican, 8 years
– Clinton, Democrat, 8 years
– Reagan/George HW Bush, 12 years
– Carter, Democrat, 4 years
– Nixon/Ford, Republican, 8 years
– Kennedy/Johnson, Democrat, 8 years
– Eisenhower, Republican, 8 years
– Franklin Roosevelt/Truman, 20 years

Other than the Carter/Reagan/GHWB period, we pretty much switch out the party of the president every 8 years. What’s this have to do with the Supreme Court?

The Court is also balanced. Sure, justices are supposed to be impartial. They aren’t. No human is. No one is surprised that Justice Ginsberg is a Liberal, or that Justice Alito is a Conservative. We knew they were when they were appointed. And since the presidency has been switching back and forth politically, we’ve actually maintained a reasonable balance as Democratic presidents appoint Liberal justices and Republian presidents appoint Conservatives.

Occasionally a justice will turn out to be not as Liberal or Conservative as the president who appointed them thought they would be. And that’s also part of our system. But, we’ve had a fairly balanced court. It leans slightly left on social issue and leans slightly right on gun rights issues and business.

That brings us to the nominees. President Obama’s nominee Sonia Sotomeyor, a Liberal was nominated to replace Justice David Souter, also a Liberal. Likewise Elena Kagan was nominated to replace Justice John Paul Stevens, who was also a Liberal, despite being nominated by a Republican president. When each of these women were seated on the Court, the balance of Liberal/Conservatives was largely unchanged.

That brings us to Merrick Garland. He was nominated to replace Justice Antonin Scalia, one of the most Conservative justices. Had Garland been confirmed, the court would have shifted significantly to the left. Republicans were determined to use any stratagem possible to prevent that. And we ended up with the embarrassment of a standoff between a president putting forth a nominee and Congress refusing to hold hearings.

You would think that Democrats would have been anxious to get revenge two years later after the next president nominated a Conservative. You’d be wrong. Justice Gorsuch was confirmed 54-45. Three Democratic senators crossed the aisle to vote him in.

Why? Because it didn’t change the balance of the Court. Gorsuch, a Conservative was replacing Scalia, also a Conservative.

And now we come to Kavanaugh. Why the fierce resistance to him? Because he is replacing Justice Kennedy. Technically, Kennedy is a Moderate, but that just means he’s biased in ways that don’t match a political party. On social issues, Justice Kennedy has voted very Liberal. He sided with the majority in Obergefell vs Hodges, better known as the Gay Marriage case. And yet, he also sided with the majority on Heller vs DC, the landmark gun rights case.

Kavanaugh is much more consistently Conservative than Justice Kennedy was. And that will disrupt the balance of the Court. So, even though Democrats had little chance of stopping his confirmation, they have worked tirelessly to try to prevent it.

The last time we had a Conservative replacing a Liberal on the Court in a manner like this was 1991 when the elder President Bush nominated Conservative Clarence Thomas to replace the more Liberal Thurgood Marshall.

It looks like the vote on Kavanaugh will be this weekend. Fifty Senators have stated they intend to vote to confirm him, virtually assuring he will be our next Supreme Court Justice. And while people will claim that the fight was about drinking or lying or allegations of abuse, the root of all those efforts is the fact that his appointment will shift the Court to the right.

Justice Ginsberg has suggested that she intends to retire sometime in the next five years. If Trump is reelected president he will appoint another Conservative to fill any vacancies on the Court.

If a Conservative is nominated to replace Ginsberg, you ain’t seen nothing yet.

Rodney M Bliss is an author, columnist and IT Consultant. His blog updates every weekday. He lives in Pleasant Grove, UT with his lovely wife, thirteen children and grandchildren.

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or email him at rbliss at msn dot com

(c) 2018 Rodney M Bliss, all rights reserved

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One Comment
  1. Filibustering his nomination vote and then getting shut out by Reids short sighted “nuclear option” is hardly “fairly easily confirmed”. The Senate Dems simply made a mistake in their defense plans and thought they could mount the opposition too late. They got snookered by their own guys parliamentraty trick. Kavanaughs nomination debacle is their never again moment and it looks like it will also bite them when all is said and done. Changing the characterisation of Gorsuch’s nomination to ‘easy’ has actually been part of the Kavanaugh fight to try and justify it and/or to cast doubt on BKs credibility; “we didn’t do this to Gorsuch! there must be something wrong with Kavanaugh!”
    Balance does change the energy levels available for the fight, but they have never been easy on anyone not of their choosing.

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