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Best of 2018. #5: It’s All About Balance (Oh, And Bret Kavanaugh)

December 25, 2018

It’s time to countdown the biggest stories of 2018. Actually, no, just my little corner of it. Here is the 5th most popular post from the past year.

I typically avoid politics in this space. But, Bret Kavanaugh was such huge story it dominated the media for weeks. This was my attempted non-partisan take on it.

It’s All About Balance (Oh, And Bret Kavanaugh) Originally published 10/5/2018.

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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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(c) 2018 Rodney M Bliss, all rights reserved

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2 Comments
  1. Randy Grein permalink

    Your ‘best of’ post should give people some pause, but you seem to have missed one significant fact – the court has been pulled to the right over the past 40 years, and it’s been done so by the Federalist Society more than anyone else. How do we know?

    When appointed by Richard Nixon Justice Stevens was the most conservative judge on the bench. By the time he retired, he was the most liberal. When asked why he had changed so much over the years, he commented ‘I haven’t. If you check my votes and arguments you’ll see I have not changed. The composition of the court has changed around me.’

    Given the stated campaign from the Federalist Society itself to ‘return us to the original conservative values’ I think it’s credible that they are indeed promoting the most youngest, most conservative judges they can find every time a Republican President is in office.

    I would be happier for a bit more balance. And we should pay more attention to this attempt to skew politics.

    • I didn’t do a blog entry about it, but I think it was a mistake for the Republican Senators to refuse to vote on Garland, President Obama’s nominee.

      We switch parties in the White House about every eight years. That kept a natural balance to the court.

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