According to Daniel Horowitz, one person is at the root of the uncivilized mess that has been the confirmation process for US Supreme Court nominee Brett Kavanaugh.
That one person is the man Kavanaugh has been nominated to replace: Justice Anthony Kennedy.
Horowitz has written a great piece for Conservative Review entitled No, Anthony Kennedy, it was you who destroyed democracy. In that commentary, Horowitz identifies Kennedy as “the cause of the problem we have with idolatry of the Supreme Court” because of the recent retiree’s penchant for finding new meaning in settled law.
Horowitz points particularly to the court’s recent decision on gay marriage, and specifically to 23 words in Kennedy’s opinion on that case:
… and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.
The “they” in that passage refers to the signers of our Constitution, so in Horowitz’ words,
Kennedy believes that the courts are the final say even over natural law and that they can rediscover new insights into the Constitution as they see fit. This is more power than King George held at the time of the Revolution. As such, it doesn’t take a genius to figure out why such a fabricated position of power will bring out the worst in America every time there is a vacancy.
In other words, what we’ve just witnessed is likely the new norm.
Though Horowitz stops short of offering a solution for such judicial activism, if we can survive another couple of battles like the one we’ve just endured then perhaps it will solve itself.
The only question then will be – is the damage that’s already been done reversible?
Header photo by Susan Walsh, AP