The Kavanaugh Process

One of the features of the American judicial system is the notion of process. It’s there in the Constitution: “due process.” The notion that how you proceed (shared root with process) is just as important as the result of the proceedings.

The Republicans have elected to follow a mangled process for deciding whether to consent on the nominee for such a process-oriented institution. Hundreds of thousands of documents withheld. Conflicts in the release process that would make Lady Justice tear off her blindfold and toss down her scales, walking away in disgust. Confidentiality markings that are meant to obscure rather than protect.

Another low point. The thinking among Senate Republicans seems to be that, given their map for the 2018 midterms, they have nothing to lose. When your team is virtually guaranteed, no matter the wave, that you’ll retain your majority, that’s when you say “fuck the voters.” Except that’s not how our country is supposed to work. That’s exactly the kind of tribal, might-makes-right thinking we sought to abolish in forming the nation.

I expect that they will feel the sting of their indifference to America’s flag and its defenders in due time. The Republicans in the Senate may be safe in 2018 (remains to be seen), but they will not be safe forever. Kavanaugh may yet be confirmed through a process that any judge in any court in the land would bang the gavel on, and bad judges do real damage. That’s regrettable, lamentable, but at the end of the day all the rest of us can do is keep working to remedy the injustices, whether they are natural or artificial, political or commercial.

To put it another way, if Kavanaugh is confirmed, if the court rules poorly, the choice remains of how to react. I do not expect that the public will abide in bad law. It takes time, it takes effort. The law is subject to amendment.

This is just the sort of power shifting that Senator Sasse pointed to in his opening remarks (The Washington Post: 4 September 2018: Amber Phillips: “Ben Sasse on why Kavanaugh hearings are so ugly”; see especially the four-point argument mentioned). Having an imbalanced court inevitably pushes voters in the other direction, like carrying too many groceries in one hand leads you to lean the other way to compensate.

There’s an open question in game theory about how necessary such shifts are. That is, whether congress could self-reattach (to extend the self-neuter analogy used by Sasse), or whether some outside event is required to provoke such a response. If, in fact, such outside agitations are requisite, then in our next revision of our governing systems we should seek to build-in mechanisms to induce rebalancing more frequently.


We are just over eight weeks out from the election.