The Kavanaugh Confirmation

Well, despite my prediction otherwise, it now seems that something important is about to take place in politics before Mueller weighs in with his report and totally upsets the Washington apple cart. That is the Kavanaugh confirmation hearings. This time, both parties are spoiling for a fight and will engage with one another and that may result in confrontations over ideas of the sort we haven’t seen in a while. That is because both parties see important issues at stake and because side thinks that  the public will side with them. The Republicans are on the brink of having a majority conservative court for a generation or two and believe that the voters will side with them in the midterms because the Court is so important to their base and this will lead the voters to not concentrate so much on making the midterms a referendum on Trump’s character. The Democrats believe that what is at stake are abortion rights and health insurance and that the voters, particularly women, will turn out in force if they believe those rights to be threatened. So it will be a gloves off confirmation hearing, no beating about the bush, however much recent confirmation hearings allowed nominees to get off the hook by claiming that they cannot opine on any matters that may appear before the Court and so have made the Senate settle for anodyne descriptions of cases from the past and what the nominees wish to present as the way judges settle cases. That way they avoided the disaster that occured with Justice Bork, where he was penalized for actually getting into substance about his own jurisprudence. I think he got the best of the argument but it also led Senators to side against him under the excuse that he was too proud of his legal acumen. A nominee is supposed to be both brilliant and modest.

Actually, the current nominee has already taken a flyer at pursuing the usual way to go about presenting yourself to the Judiciary Committee. Kavanaugh said that he believes the Constitution should be interpreted as it was written and that judges do not make law. That is both a platitude and also the statement of a view of the Constitution that is controversial. He is taking sides, if the point is meaningful at all, on the conservative side of the issue of how to interpret the Constitution, even if liberals would say that they are the ones who are defending the Constitution as written because they understand abstract terms such as “due process” to allow for changes in meaning rather than to only mean what the Founding Fathers had particularly in their minds. The same goes for “equal protection” and for “cruel and unusual”. So “equal protection” means gays and “cruel and unusual” means no death penalty because that punishment is so hedged in with protections against its abuse that the premise must be that the death penalty is nowadays “cruel and unusual” even if in some states still legal. And, for all I know, the guarantee of the U. S. Constitution that each state will have a republican government means that there are no end of ways in which the federal government can supervise the conduct of elections within the states. But let us get to the real abstract issues which motivate both sides rather than the technical issues in which those become clothed and the inclination of at least the Democratic Senators to take on, it seems for now, the meanings of concepts.

First of all, there is the matter of abortion rights, the deep down conservative position being that a fetus is alive since conception, and the Democratic position that it is not alive until the head has appeared outside the vagina, both of which are implausible because philosophers and physicians have disagreed about this matter for millennia. Let us turn the discussion, rather, into one about rights, which is a fundamental question in American thought and so not just a matter to be delegated to lawyers. If someone has a right, I would argue, the government is obliged to  provide you with the means to exercise that right. That does not impact freedom of the press or public assembly because the whole idea is that everyone can get access to a printing press and so exercise that right and that it doesn’t cost much to put together a march, especially in these days of social media, though it may take some lawyering to put together the incorporation papers whereby a movement can raise money to support such efforts. And freedom of religion does not mean paying for churches or religious schools, even if that is the way this right has evolved in Europe, because the Constitution merely says that the government will not prefer one religion to another, not that it will support religion. People in the United States pay for their own churches.

Consider instead voting rights, which also do not cost all that much to make available to the people. But what if a state claimed that it could not afford to open polling places on election day, or that it could only afford to open them for an hour, or that the number of polling places to be provided were meagre in relation to the number of people who wanted to vote? That would clearly be actionable, and has in fact been the subject of court orders, aside from the general question of political values in America that regard it as an obligation of government to make the voting process as easy as possible.

Now apply that logic to more recent issues that have become regarded as rights. In particular, under Roe v. Wade, abortion is a right and therefore it follows that the government cannot make it difficult for people to avail themselves of that right, quite aside from whether a state government can claim that it does not have to pay for abortions. Is Judge Kavanaugh saying that abortion is not a right or just not an enforceable right? In the first case, he is overturning Roe v. Wade and in the second case he is violating the principle that the government cannot interfere in the exercise of a right even when it does not cost the state any money. So where do you stand, Justice Kavanaugh? This is a question of general views about rights not about some case you might have to decide upon.

The other issue that is central to the conservative political agenda is rolling back the provisions of the Affordable Care Act. Cases are moving along in the courts which have to do with whether other provisions of Obamacare are to be voided now that the individual mandate has been repealed by Congress. But let us move on from the legal issue of when a statute is null and void when some part of it has been voided to the more central issue of American values that is the real motivation behind the desire to abolish the Affordable Care Act.

The animus of conservatives is that once enacted government programs prove popular and conservatives are opposed to anything that makes people more dependant on government. It is also the case that conservatives have enshrined corporations as the embodiment of laissez faire economics and that therefore they should be granted as much freedom of action as possible. Corporations are to be preferred to the health of the public that environmental regulations might safeguard. Similarly, corporations are allowed to try to influence the electorate to the very bottom of their very large purses. All this goes back to the time when the Fourteenth Amendment was determined to mean that corporations were entitled to the same legal protections as people and resulted in such decisions as Lochner v. New York (1905) where a limit on the hours bakers might work was held unconstitutional because that interfered with the ability of corporations to contract as they saw fit even with people not in much of a position to strike much of a bargain. The free market, as that is understood by conservatives to mean the equivalent of justice, is to rule, not laws made by men. Justice Holmes, in his famous dissent, said that “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s ‘Social Statics’ ”.

Bring this history to bear on the case of health care. Conservatives want to see to it that as few impediments as possible are placed in the way that health insurance companies contract with those they propose to insure. That means that government cannot step in and demand certain provisions, such as not using prior conditions as a way to deny coverage, just as conservatives were opposed to establishing minimum wages and maximum hours for workers. It is to disrupt what conservatives regard as the natural bargaining process, never mind that only the government or unions can interfere on the side of the interests of the weaker of the two parties in a negotiation. Whether conservatives believe this as a gut instinct or because it makes it easier for them to raise corporate donations for their reelection campaigns is of less matter than that this rhetoric of letting corporations do as they please is a recognizable feature of Republican campaigns. And so a legitimate set of questions for Justice Kavanaugh about his judicial philosophy rather than of a case that may come before him is the extent to which he respects the independence of the corporation from oversight, from being subject to regulation or restriction in its bargaining practices. I would like to ask Justice Kavanaugh if he agrees or disagrees with Justice Holmes. Let him take his pick. That will show where he really stands and so provide a basis for voting him up or down. I look forward to seeing how he will wiggle out of saying that corporations are free to do as they please.