SCOTUS Is Now An Arena For Political Conflict

10/26/18, by Professor John Frary,

The Collins-Kavanaugh Crisis

The thing that makes our Founding Fathers forever different — and superior — to any collection of politicians since is this: they knew they were laying the foundations of a new country.

Before the Constitution was ratified, there was no United States of America. They aimed to make these foundations durable. They knew this meant a Constitution the people would accept and defend.

George Washington made this aspiration clear:

“The basis of our political systems is the right of the people to make or alter their Constitutions of government. But the Constitution which at any time exists, ‘till changed by an explicit and authentic act of the whole People is sacredly obligatory upon all.”

Alexander Hamilton amplified Washington’s dictum:

“If it be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be, An inviolable respect for the Constitution and Laws — the first growing out of the last…A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government.”

On July 6, as soon as Justice Kennedy’s retirement was announced, the New York Times editors made the Left-Lurcher constitutional interest abundantly clear by pointing out that “the president will lock in a 5-to-4 conservative majority, shifting the court solidly to the right for a generation.”

Although the Oval Office Ogre, who haunted their nightmares, had not yet nominated Kennedy’s replacement — the agitated NYT editorial board knew what kind of nominee he would be:  “a reactionary, ultraconservative, right-wing ideologue.” They knew this because all his judicial nominees had come from a published list populated by that kind of judge.

In political speech “ideologue” generally has no literal meaning, no more than “bastard.” It isn’t even a word. It’s a sound, like “bah,” “boo,” or “agghh.” In this context, it conveys hatred for whatever originalist Trump would choose from the list prepared for him by the Federalist Society.

The adjectives “a reactionary, ultraconservative, right-wing” don’t refer to the decisions written by the men and women on the list. How could they? The NYTwits didn’t even know their names at the time they fired their blunderbuss — but they did know everyone was an originalist.

It turned out in the end that smearing Judge Kavanaugh as a rapist was the Left-Lurchers last desperate hope to block the nominee, but their target from beginning to end was an originalist, not a rapist. Leave out Prof. Ford’s strange and sudden appearance, the attack on Trump’s nominee — whoever he turned out to be — would have been substantially the same.

That is the first key element to keep always in mind.

The second is that the Supreme Court has become an arena for political conflict. The NYT editorial made this clear with its warning about locking in a right-wing majority for a generation.

The Maine Common Good Coalition was more specific in spelling out the political issues. The manifesto is emitted to rally its followers to pressure Senator Collins: “A Supreme Court Justice is EVERYTHING that affects our and our children’s lives and their futures. From the Environment, to Climate Justice/Climate Change action, to Women’s Rights, to Civil Rights to Workers Rights, to Equality Rights, to Immigrant Rights, and more, there is little a Supreme Court Justice does not impact in an American citizen’s life.”

Let’s pause, note, and ponder the fact that the Left-Lurchers had never seemed disturbed that this vast power was exercised over our lives by a tiny oligarchy chosen by one man with the consent of a hundred senators from a pool of potential nominees that would not have filled Farmington’s Old South church.

They were happy to see Americans ruled by an oligarchy the size of the old Soviet Politburo when the voters and those they chose to represent them did not act the way they were supposed to.

The part of Senator Collins’ speech explaining her vote that caught my special attention was this: “To my knowledge, Judge Kavanaugh is the first Supreme Court nominee to express the view that precedent is not merely a practice and tradition, but rooted in Article III of our Constitution itself.” He believes that precedent “is not just a judicial policy … it is constitutionally dictated to pay attention and pay heed to rules of precedent.”

This contribution to the confirmation debate that involving Constitutional interpretation was unique. I confess I can’t reconstruct Judge Kavanaugh’s (sorry, Justice Kavanaugh [heh, heh]) reasoning. I assume it’s found in Section 2, but I can’t figure it out, and the senator did spell out our new Justice’s reasoning.

Never mind. It’s enough that at least one senator paid attention to the Constitutional interpretation.

Senator Collins spent more time discussing Prof. Ford’s accusation. This, after all, was where the pseudo-debate had centered when it was time for her to announce her intentions. Having expressed the required sympathy for the professor’s distress, she assessed the evidence of the charge against the nominee and found them insubstantial.

This has become the focus of the rage against Susan Collins. She was supposed to believe the survivor; believe all survivors and dismiss all denials, dismiss all evidence, dismiss all objections emitting from the sexually rapacious Enemy Sex. She will not be forgiven.

We notice here that the word “accuser” is banished, replaced in all such circumstances by “survivor.” Read and watch the Muddy Stream Media; see if you hear “accuser” being used. See, an accuser needs evidence to substantiate an accusation, while a survivor requires sensitivity, sympathy, empathy.

The nomination circus provides two perspectives: Big Politics and Little Politics.

Big P concerns constitutional principles, government power, democracy versus oligarchy, conservative principles versus social justice. Little P concerns winning and losing elections.

The Left-Lurchers clearly hope to stir up a female tsunami of rage by treating Brett Kavanaugh as the very image of the masculine power and depravity which threaten the sisters, mothers, aunts, wives, girl-friends and grandmothers of America.

Those of us who are attentive to the Muddy Stream Media know that hate is a conservative kind of thing, but it’s clear that if Left-Lurchers were capable of hate — a huge proportion of it would be directed at Susan Collins just now.  A month or so, a few incendiary tweets, and it will reconcentrate on Trump. But Collins is a premier magnet for the present.

The Boston Globe found on October 6, that “Susan Collins’s decision reverberates in Maine,” and tells its readers that an exemplary Portlander who said she doesn’t know how “she’s going to show her face in Maine.”

Katie Mae Simpson, Executive Director of the Maine Democratic Party, sent me this message: “John — Susan Collins turned her back on women when she cast her vote for Brett Kavanaugh. We’re holding her accountable, starting NOW … Mainers have had enough of Susan Collins.”

Rolling Stone reported that a Maine People’s Alliance Crowdpac raised $2-Million to support a still unknown opponent if Collins supported Kavanaugh. A later Washington Post report said that it had raised $3-Million.

This is a huge sum to have on hand two years before the election process even starts. But Paul LePage told me last Wednesday that he had already called Collins and told her that he planned to turn his coat, register as a Democrat, scoop up the Crowdpac treasure, and spend the whole sum on the primary election.

Eager to do its part, the Portland Press Herald published, “For Maine Women in Confirmation Protest, the Fight Was Personal” in which staff writer Megan Doyle told readers about Maine women who traveled to Washington to ask Collins to vote against Trump’s nominee. Some wanted to share personal experiences of sexual assault and “Most,” Ms. Doyle wrote, “had experience with political action, from phone banking to protesting, but none had ever participated in a movement so personal.”

An interesting convergence of experiences: sexual assault and political activism. Collins declined to meet them and Megan explains how this experience reminds us  that “accusers can still be blamed, while powerful men can still be cast as victims.” Her comment shifts attention away from the obvious political objectives and back to sentiment.

Here we see how Little Politics submerges the issue of constitutional interpretations and oligarchical power. In the long run, the ability of the courts to facilitate or impede the growth of government power is crucial. In the short term, there are mid-term elections to be won.


John Frary is a retired college professor of 32 years, a well-known conservative columnist and activist, and a former Maine congressional candidate.

Professor Frary is a regular contributor to Maine First Media and will be back next week with another exclusive column.