Is the US Supreme Court the wrong fight for the left?

I don’t think there is a good way to engage with the unedifying spectacle that is the Sentate Judiciary Committee process for considering the appointment of Judge Kavanaugh to the US Supreme Court. It is hard to think of a more egregious way of making an informed decision about whether Judge Kavanaugh is the best possible appointment to the Supreme Court, let alone of trying to find the truth about an alleged event from 36 years ago. I don’t want to get into the details of the claims and counter-claims about sexual assault, except to make clear that this is a serious matter that deserves full investiation. In an ideal world, truth and justice would prevail without being warped by the pressures of policitcs.

One thing that feels apparent however, is that these deliberations are coloured by the politics of, not just the Senators sitting around the room, but of Judge Kavanaugh himself, the media, and the wider commentariat. This is driven by the incredible influence that the Supreme Court has over the operation of the US Body Politic, and by extension the everyday lives of American people. It is also driven by the failure of recent nomination processes and the breakdown of any prospect of a reasonable discourse about the merits of judicial skill and knowledge when choosing Supreme Court Justices. Partisan roles taken by today’s political actors mirror the positions and faux indignation shown on all sides during the failed Merrick Garland nomination.

So far so obvious; Supreme Court nominations are intensely political. But sometimes it is easy to forget that in a democracy, political power is by design a finite resource. It is held in trust and for limited terms by politicians, must be renewed by the electorate, and needs to be spent with consideration in order to be effective and — more importantly — sustainable.

The politicians’ life cycle is, therefore, short by default, and can only be extended by the constant renewal of legitimacy from the electorate. In contrast, Supreme Court Justices serve for life and are insulated from popular views and wishes. For this to work in balance, the power of politicians must be much greater, but inherently brief, whereas Supreme Court Justices have longevity and perspective, but must not have the same degree of power.

Within this context, how far is the expenditure of political resource in the process to select the next Supreme Court Justice the right call? And how far is it an acknowledgement that the balance of power between legislature and judiciary is unbalanced?

In the short-term, it is easy to measure the use of political power by the fact of whether Judge Kavanaugh makes it onto the benches of the Supreme Court. There is also a medium-term measure in the form of the impact on the forthcoming mid-term elections (and to a lesser extent the Presidential election of 2020); how women vote will be taken as an indication of the impact of the hearings into Judge Kavanaugh.

But what about the long-term impact? This is often cited as the key reason for challenging or supporting the nomination of Judge Kavanaugh. If successful, he is likely to be sitting on the Supreme Court bench for maybe 30 years — so potentially decades to have an impact on the lives of millions of Americans through judicial decisions.

Through judicial decisions. That is the nub of it. The Supreme Court does not make the law — it interprets it, and makes decisions about the constitutionality of the cases brought to it.

But, because of the failure of politicians to legislate effectively and because of the failure to build consensus around issues — especially social issues — the Supreme Court has been forced to become the arbiter of American life in a way that was never intended. The balance between the legislative and the judicial has been warped, ironically by the weakness of lawmakers. The balance of power has shifted so that Supreme Court Justices have longevity, but are now selected more for their political positions than their sense of perspective. Because they hold increasing power without any need to renew their mandate.

If anybody is going to drive the social agenda in the US it should be legislators, on issues such as abortion, gay marriage, gun control, etc., in whichever way best represents their views and judgements. This is what they are for. Using their political influence to shape the Supreme Court is understandable in the current context, but it is an abdication of the responsibilities of legislators.

This is particularly true of those on the left, in part in recognition of the fact that they have simply been less good at persuading a majority of the American public to agree with their social views. Or at least to get this translated into votes and therefore legislative action.

So, stymieing the nomination of Judge Kavanaugh may feel like victory in the short-term and lend momentum into the November mid-terms. But in the longer term it weakens the position of the left. It fails to win hearts and minds, fails to shape the wider public agenda.

If the tide of history truly is progressive, then it should be the right who are fighting a rearguard action, ever more desperate to hold on to victories that they fear are about to disappear. Instead it is the left who are relying on obfuscation to try to retain a false-power, won in the heat of the 1960s and 1970s but now increasingly unable to operate as it should. If the left is confident of its own march of progress, then it should not seek to hide behind the decisions of nine Supreme Court Justices, it should not bask in the adoration of crowds — no matter how well intentioned — in ‘Notorious RBG’ T-shirts. It should make its case to the American people with the confidence that it can win in time.

Of course there is a price to pay for this. Most likely it would be in the reversal of decisions that have becoming totemic — Roe vs Wade most prominent. Any moves by the Supreme Court further to the right on this issue would have a profound impact on the lives of millions of people, including especially women seeking abortions. For some — and I have every sympathy with this view — this is simply too high a price to pay.

But recognise this. The hold on a progressive view on these issues is tenuous. On other issues (e.g. gun control) it has failed to materialise. Increasingly the left is relying on winning battles, but at the expense of losing the war. Legislation, even Constitutional amendments, are incredibly hard to acheive. But they are secure in a way that no Supreme Court nominee fight will ever be. Most importantly, the left must recognise that by failing to trust in the legislative process to achieve its agenda — by failing to trust the American people — they are undermining the very democracy they profess to hold so dear.

For the right, the battle for Supreme Court nominees is more straightforward. It is a battle to deliver a Court that reflects more closely the legislative victories of the last 20 years and more. It is to stop the Court acting as a vanguard of progressive thinking and instead reset it to follow the views of the majorty of the American people — or at least as expressed in how this translates into votes. It recognises that the right has simply been more effective in articulating its own vision of American culture in legislative terms. If the right is able to achieve the balance it seeks, then perhaps the battle over the future of American culture will once again move to the legislative arena, where public opinion can be fought over, shaped, persuaded, and ultimately turned into meaningful political decisions.

This is the proper theatre for the exercise of political power. It reasserts the right of politicians to make public policy, it allows for changes in view and responsive politics. And it forces the American people to live with the consequences of decisions, and to become activists in seeking change through the proper political process, rather than finding validation or horror by tuning into the televised awfulness of the last few days.