Quote of the Day:
Liberals are in no mood to believe this, but I think it is possible that the Kavanaugh Court may give everyone a chance to step back from the political cliff. This isn’t an appeal to rediscover the political center. It’s an appeal against flying irrevocably apart.
Although opponents of the Brett Kavanaugh nomination to the Supreme Court have taken to the streets, Daniel Henninger proposes a novel idea: ultimately, a less activist Supreme Court could bring a measure of calm to the bitter cultural tensions in this country.
And those cultural tensions threaten to overwhelm our system:
Impatient with the three branches of government established at the nation’s founding, the left routinely takes its politics to the streets now to demand remedies for “inequality” or “injustice.” Yet these inchoate demands have become so disconnected from the normal mechanisms of politics that no Congress, representing 535 elections, could possibly turn them into legislation.
For some on the left and indeed on the right, polarization has become a drug that produces a pleasurable political delirium. After Donald Trump’s election, what emerged, even among senior congressional Democrats, wasn’t just an opposition but “resistance,” a word normally associated with armed underground movements.
Henninger makes a point that is too often forgotten: this state of affairs did not start with the election of Donald Trump. Anybody forgotten the Code Pink demonstrations in the George W. Bush administration? The polarization continued apace during the Obama years.
We've reached a point where, according to a Pew survey, 70% of politically active Democrats and 62% of Republicans told those conducting the survey that they are “afraid” of the opposing political party.
Henninger traces much of the intensity in American politics to the Court's 1973 decision legalizing abortion. It fostered both the rise of the religious right as a political force and the rise of a countervailing force that Henninger calls aggressive secularism.
After the abortion ruling, hot button issues were, as Henninger puts it, "rerouted" to the Supreme Court. The Supreme Court thus became central in the cultural issues that confront the nation.
A different kind of Supreme Court, one that waits for the Congress to enact laws, might reduce the vitriol in the country. Here is how Henninger explains this:
It would be good for the country’s stability if a Kavanaugh Court disincentivized the left from using the courts to push the far edges of the social envelope. This is not about turning back the clock. It is about how best to resolve bitter social and cultural disputes in the future. It is about no longer using the courts to make triumphal moral claims against the majority.
In the Kavanaugh Court, extending rights claims beyond their already elastic status is going to require more rigor than appeals to a judge’s personal sensibilities or a theory of social organization developed in law journals.
Advocates for social change involving race, gender, identity and such will have to convince representative majorities, elected by voters, to agree with their point of view. Unlike in the past four decades, the high court will more often weigh in after, not before, the political process has happened.
The United States needs to settle down politically. Some day the sitting president may see the value in that for his own legacy. This nomination is a good start. A Kavanaugh Court will provide the country with a needed pause.
Henninger's column is eloquent but he is not the only person who has made this point.
David Leonhardt, a liberal columnist at the New York Times, accuses Republicans of "stealing" a Supreme Court seat that should have gone to Merrick Garland.
He has nothing good to say about the Kavanaugh nomination–except this, that if the Supreme Court can no longer be counted upon to do the bidding of liberals (needless to say, this is now how Leonhardt characterized it!), Democrats will have to turn to other avenues.
Like politics. Hot button issues should be thrashed out in the political arena. Leonhardt writes:
I realize that a post-Kennedy Supreme Court may one day start throwing out progressive legislation, as happened in the early 20th century. But that’s a fight for another day. Most experts I’ve talked to — scholars and people in politics — believe that elected politicians can prevail in a long-term struggle with unelected judges.
Wow! Did you ever think you'd see the day when liberals started complaining about "unelected judges?"
Seth Lipsky makes these points too.