It has been a little tough to gin up the will to write lately, the overwhelming volume of information and craziness has put my head into a place where I have needed to just stop, think and collect myself, to keep me from going a little insane. The Kavanaugh hearing reminds me that there are other means besides the courts to achieve social justice, such as state, local and federal legislation.
But I do need to take a moment to talk about the court and the current proceedings. For the record in my opinion, Kavanaugh appeared to show exactly who he is, belligerent, angry, partisan. He certainly likes beer. I understand he does not like what is happening at the moment. But the fact is that Dr. Ford has made an allegation, and she appears credible. Blaming Democrats, the Clintons, and “the left”, and attacking the process as a disgrace does a great disservice to a woman coming forward with her story. If it did not happen then Mr. Kavanaugh should welcome an opportunity to clear his name rather than go on the attack. This looks like the same guy who refused to shake Fred Guttenberg’s hand. (Mr. Guttenberg is the father of a child killed at Parkland.) He does not appear to have the temperment we would expect out of a Supreme Court justice, or any judge for that matter.
This is not to say that Mr. Trump should not get to make another conservative pick for the Supreme Court. Elections matter, and presidents get to pick their nominees. I do think it unfortunate, however, that the filibuster was eliminated for federal judges (done by the Democrats in 2013) and Supreme Court Justices (done by the GOP in 2017). Without the filibuster, presidents are free to nominate ideologues, and in this case, a nominee whose character is in question.
Be that as it may, a very strong possibility still exists that a Trump appointed nominee makes it on to the court by the end of the year. Even if Kavanaugh’s nomination is pulled, it is likely the Senate rushes through another confirmation, even if during a lame duck session post-November (remember Gorsuch had no such allegations). Which brings us to a reminder about the role of the courts.
The Supreme Court is not and should not be the only recourse for change, whether on social, economic or, civil rights. The court is necessary at times to push through certain walls - Brown v. Board of Education is of course the seminal example. But the court can go the other way as well, whether way back in Dred Scott and Plessy v. Ferguson (which Brown overturned), or more recently, Citizens United v. FEC (prohibiting regulation of corporate political spending) and Shelby County v. Holder (invalidating portions of the Voting Rights Act of 1964). Justice Kennedy swung the court in favor for equal rights for marriage equality in Obergefell v. Hodges on a 5-4 vote, but Kennedy also wrote the opinion in favor of the Colorado baker who did not want to make a cake for a gay marriage (Masterpiece Cakeshop v. Colorado Civil Rights Commission). And now Kennedy is off the court. As such, Justice Kavanaugh could start to peel back LGBTQ and other rights in the same manner that the rights conferred by Griswold v. Connecticut (right to privacy) and Roe v. Wade have eroded over time as the Supreme Court’s makeup changes.
All of this is to say it’s not just elections for President matter - they do - but pressure and actions by legislatures - local, state and federal - can and should work in as an agent for change instead of solely being reliant on whether the court has five votes. This has always been the case, but it seems in our recent history the court has taken an outsized role in this area post 1960s civil rights legislation. Our most basic protections are codified in civil law - the Constitution and all of its amendments, the Voting Rights Act, Civil Rights Act, Americans with Disabilities Act, and so on.
Where I may have some potential optimism is that there are a lot of energized people who can pitch in and make a difference outside of the courts. We need to make sure our states protect the rights of LGBTQ, women and immigrants, implement criminal justice reform, protect the environment, incentivize and/or build affordable housing, and ensuring civil rights including the right to vote. It is our responsibilty to elect legislators and hold them accountable for this progress. If the river of progress is dammed up by one avenue, then we must guide the water through another path.