The Appointment

President Trump has appointed Judge Brett M. Kavanaugh to the United States Supreme Court. This was immediately followed by the usual coded double talk from politicians and political pundits on the right who said in various ways that Kavanaugh was not an “activist judge”. For example, Trump promised a Justice “who will faithfully interpret the Constitution as written”. The Wall Street Journal said Kavanaugh’s record “suggests he will help to restore the Supreme Court to its proper, more modest role in American politics and society” and that “Kavanaugh is among a younger generation of judges who base their ruling on the text of the Constitution and Congressional statute.” You can expect to hear more and more of this kind of talk in the months leading up to the phony, staged, perfunctory confirmation hearing. All of it is intended to convey to those who are not versed in the law the simplistic and false idea that the Constitution and the laws of this country are clear, unambiguous and easy to apply to any fact situation that may arise now or in the future.

Most people would agree that Thomas Jefferson knew a thing or two about the Declaration of Independence, the Constitution and political theory. After his presidency, Jefferson kept up a lively correspondence with many notable thinkers of his era about all of the political issues of his day. Here is what Jefferson wrote to Samuel Kercheval on 7/12/1816: “Some men look at constitutions with sanctimonious reverence, and deem them, like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present; but without the experience of the present: and 40 years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”

In other words, the law is not immutable and must change to fit the times and the needs of society.

The truth of the matter is that Republicans are counting on Kavanaugh to be an “activist judge”. If he is not, it will be a big disappointment to Republicans. His job, from their perspective, is to:

• be a reliable vote for the conservative point of view on social issues such as abortion; guns; religion; gender and racial discrimination, etc.;
• bless the Republican political strategy of voter suppression through gerrymander, voter ID laws, purging of voter rolls, etc., and continue the ability of candidates to benefit from unlimited supplies of “dark money”;
• expand the rights of corporations and favor corporations over individuals in all forms of litigations;
• hold the ACA (Obamacare) to be unconstitutional; and,
• protect Donald Trump if, as and when necessary.

It is reasonable to believe Kavanaugh has already been tested on all these issues in private before his appointment was announced.