Because federal judicial confirmations have devolved into ugly, embittered, partisan processes during the last two decades, it may be impossible to find good, talented candidates willing to accept nominations.
Democrats prefer to play to the TV cameras and assassinate nominees’ character rather than get a sense of their judicial temperament and philosophy, making the process painful and stomach-turning for the nominee, his family, and observers.
Although the Constitution lists minimum qualifications for a president and members of Congress, it’s silent on those sitting on the nation’s high court.
Justices aren’t required be lawyers or to even have attended law school. “The Constitution does not say that a Justice must be American born, a certain age or hold any particular profession before being selected,” writes J. Hirby for The Law Dictionary.
The American Bar Association attempts to fill that void. It gave Judge Brett Kavanaugh, the current Supreme Court nominee, a unanimous "well qualified" — its highest rating — and for good reason.
Professionally, Kavanaugh drafted more than 300 respected opinions for the U.S. Court of Appeals for the D.C. Circuit, long considered a springboard to a Supreme Court appointment. He also teaches at Harvard, Yale, and Georgetown.
Kavanaugh gives back to the community. He coaches Catholic Youth Organization basketball, where he’s known as “Coach K.” He serves meals to the needy at his parish, and tutors local elementary school children.
None of that mattered. Kavanaugh was subjected to more than 30 hours of grueling cross-examination under the accusing glare of Senate Democrats, periodically interrupted by loud, jarring protests.
At one point the heckling became so intense that Kavanaugh’s two daughters were rushed out of the hearing room.
And when his confirmation appeared imminent after he and his family toughed it out through this circus, the Judiciary Committee’s ranking member, Sen. Dianne Feinstein, D-Calif., threw a monkey wrench into the works.
She brought up a 36-year-old sexual misconduct claim that she’d silently sat on since July.
The accuser, later identified as Christine Blasey Ford, claimed that she was corralled by Kavanaugh and another boy at a drunken high school party. Not a single Kavanaugh or Ford classmate has any recollection of either the party or the incident.
Ironically, Republicans are alone in taking the allegations seriously — Senate Democrats choose to politicize them.
While Republicans want to question Blasey Ford to get to the truth, Democrats use her claims to obstruct the process altogether, calling on the FBI to gather evidence — evidence that’s been lost, destroyed, or forgotten for decades if it ever existed at all.
Democrats demonstrate they don’t care about justice; all they’re after is power — you have it, we want it, and we don’t care how ugly it gets.
Getting rid of the filibuster rule for judicial appointments was meant to take politics out of the equation and avoid circumstances like that of Miguel Estrada, a 2001 George W. Bush appointee to the D.C. Circuit Court of Appeals.
Estrada withdrew his name from consideration when the Senate failed to confirm — after 28 months.
“During the confirmation struggle, Estrada’s wife miscarried; in November, 2004, she died, of an overdose of alcohol and sleeping pills,” according to The New Yorker. “[Karl] Rove said that Mrs. Estrada had been traumatized by the nastiness of the process.”
When Bush considered eliminating the ABA’s role in rating judicial nominees, two senior Democratic senators, Chuck Schumer of New York and Patrick Leahy of Vermont, objected, claiming that to do so would "further polarize a process that, by now, all senators agree cries out for less partisanship."
They added that the ABA's judicial scoring is “the gold standard by which judicial candidates are judged.”
They didn’t believe it then — Estrada unanimously received the ABA’s highest rating. Given Kavanaugh’s equally high ABA rating, hey don’t believe today, either.
Despite eliminating filibuster, despite retaining the ABA’s role, and despite the “innocent until proven guilty” principle of American jurisprudence, the confirmation process has become more political than ever.
"If we brand Kavanaugh guilty and drum him from the public square without evidence, then we will have created incentives that value character assassination above actual character," concluded Edward Morrissey in “The Week.”
And if that happens, everyone will be the loser.
A good man will have lost the position to which he’s more than qualified and has earned.
The American people will have lost a new intelligent, reasoned voice on the Supreme Court.
The Democratic Party will have lost its last vestige of self-respect.
There will be fewer good, talented people willing to be subjected to a process fraught with character assassination.
The memory of joy and pride that Kavanaugh’s two daughters experienced when President Donald Trump appointed their dad to the Supreme Court will be overshadowed by an unnecessarily ugly process.
And America’s “shining city on a hill” will become forever tarnished.
Michael Dorstewitz is a retired lawyer and has been a frequent contributor to BizPac Review and Liberty Unyielding. He’s also a former U.S. Merchant Marine officer and an enthusiastic Second Amendment supporter, who can often be found honing his skills at the range. To read more of his reports — Click Here Now.
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