As even NeverTrump Republicans are coming around—grudgingly, and with caveats, of course—to recognizing the stakes in our ongoing domestic political fights, it is perhaps impolite to note: Some of us drew these conclusions quite a long time ago.
The last two weeks of psychodrama in the Brett Kavanaugh confirmation fight should count as strong—if not ironclad—evidence of the soundness of my colleague Michael Anton’s prediction in September 2016 about the trajectory and style of Democratic Party rule in the coming years. He wrote that such rule, should it come, will
be coupled with a level of vindictive persecution against resistance and dissent . . . . We see this already in the censorship practiced by the Davoisie’s social media enablers; in the shameless propaganda tidal wave of the mainstream media; and in the personal destruction campaigns—operated through the former and aided by the latter—of the Social Justice Warriors . . . .
Plenty has been written about the absurdity of running a republic by way of whisper campaigns, uncorroborated smears, and malicious innuendo. There is no need to rehash the mistreatment—some of it irrevocably damaging—of Judge Brett Kavanaugh. What’s important to remember is that this will now be the new norm of nomination battles. It marks the inevitable decline of our confirmation process over the last 30 years. I write “inevitable” because as soon as progressivism’s explicit living constitutionalism and implicit legal “realism” became dominant on the Left, the descent of the judiciary committee from respectable judiciousness to partisan bedlam was foreordained.
The Left’s living constitutionalism means that the Supreme Court is always changing with the times rather than orienting itself to any fixed standard; the Left’s legal realism means that even in the exercise of their power—under a fixed or evolving standard—judges are just political operatives like anyone else. Publius in Federalist 78 wrote of the ideal of judges exercising “judgment” rather than “force” or “will.” Under the modern Left’s understanding of human nature and jurisprudence, judgment is impossible—force and will are all we have. Should it be any wonder, then, that all manner of dirty tricks are fair game in judicial nominations? Given the Left’s understanding, why not treat justices like political candidates?
Hell, given their lifetime appointments, why not deploy tactics even beyond those used in normal political campaigning? If your prize is a nine-member super legislative Supreme Court, what’s a few broken lives littered along the way?
The Washington Post, perhaps unwittingly, caught perfectly both this distorted view of the court as well as the stakes involved when describing Kavanaugh’s test: “he faces the Senate vote that will determine whether he will spend the rest of his working life at the apex of American democracy or in permanent disgrace . . . .”
To understand the depraved reaction of so many Democrats to this nomination, perhaps we should understand the Supreme Court as anti-Kavanaugh Democrats understand it. At stake for them in this fight and many others in the age of Trump is a certain view of justice and the good life. They regard their political opponents as advocates of the bad life—or as Judiciary Committee member Cory Booker put it recently: defenders of Kavanaugh are “complicit in evil.”
Our national politics in recent decades has lost its bipartisan consensus. The middle has collapsed, and the Democrats and Republicans are pulling away from one another on the deeper principles of politics, with policy disagreements following in train. The standard and incorrect explanation for this divergence is mere partisan recalcitrance and stubbornness. It is more profound than that.
Truth is, we are polarized now about foundational questions of human nature, constitutionalism, and justice. Our cold civil war and partisan rancor will only end when one party finally wins the argument about these fundamentals in a decisive and conclusive victory and uses that victory to solidify and sustain an enduring electoral coalition for a generation or more. Should such a turn come, the losing side, as has been the case repeatedly in American history, will then be forced to accommodate, regroup, reevaluate, and moderate (we of course have the one glaring historical exception of the Democrat-led secession movement in defense of slavery that led to the tragedy of our hot Civil War in 1860).
The stakes are high right now in American politics. When Michael Anton wrote “The Flight 93 Election” in September 2016, many on the political and intellectual Right objected in strong (and often histrionic) terms. It has been encouraging to watch in recent weeks as independents and moderate Republicans have come to Kavanaugh’s (and, on behalf of Kavanaugh, to Trump’s) defense. The president and his nominee are players in a much larger fight over fundamental questions about who we are as a people and who ought to govern and for what purposes.
Even with these high stakes, all Americans ought to pray fervently and hope fondly that we continue this passionate and spirited national argument as fellow citizens, rather than as enemies. Come what may, each side must abide the consequences of legitimate political victory when and if it comes. Resistance to tyrants is indeed obedience to God in the American tradition, but resistance to the political opinions of constitutional majorities and their regular exercise of power is a recipe for disunion and collapse.
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