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The Looming Degradation of the Supreme Court


With Republican senators dutifully lining up to support President Trump’s nomination to the Supreme Court, it is increasingly likely that conservative lawyer and judge Brett Kavanaugh will be confirmed as an associate justice of the Supreme Court. At the same time, in its determination to “win,” the Republican Party will have brought not only shame to itself but also a degradation in prestige to the highest court of the land.

A couple of days ago, more than 500 law professors from more than 160 law schools across the nation had signed a public letter opposing Kavanaugh’s appointment. As a trial lawyer for 12 years before I joined the libertarian movement and who still is authorized to practice law in my home state of Texas, I was absolutely stunned. In all my life, I had never seen that happen. Sure, law professors have their own political philosophies and affiliations but I had never seen so many of them come together to take a public stand against a particular Supreme Court nominee, especially one who sits as a judge on the federal court of appeals.

Imagine my shock when that number increased a couple of days later to 2,400 law professors opposing the Kavanaugh nomination! The term used by the New York Times expressed my reaction: “Incomprehensible!”

That was on top of the withdrawal of support for Kavanaugh’s nomination immediately after he testified by the American Bar Association, which has 400,000 members, and the dean of the Yale Law School, where Kavanaugh got his law degree. What was phenomenal about this was that both the ABA and the Yale law school dean had previously supported Kavanaugh’s appointment.

Then, in what I believe is also an unprecedented act, a retired Supreme Court justice, John Paul Stevens, came out and declared that Kavanaugh lacks the required temperament to be a Supreme Court justice, which is what those 2,400 law professors are also saying.

Contrary to what conservative supporters of Kavanaugh have maintained, the primary issue in the Kavanaugh controversy does not revolve around the issue of whether a lawyer’s actions as a teenager should disqualify him from later serving on the Supreme Court. That, of course, is a interesting issue, but it isn’t the issue at hand. If Kavanaugh had confessed to sexually assaulting Christine Blasey Ford as a 17-year-old, expressed remorse for it, apologized, and sought forgiveness, then the Senate would be faced with that issue: Should what he did 36 years ago disqualify him from serving on the highest court in the land?

instead, there are three primary issues in this controversy: (1) Did Kavanaugh commit the sexual assault on Christine Blasey Ford and, if so, should that make a difference with respect to his appointment to the Supreme Court? (2) Did he commit perjury with his denial of having committed the offense and, equally important, with respect to other matters in his sworn testimony and, if so, should that make a difference to his appointment to the Supreme Court? and (3) Does Kavanaugh have the necessary temperament to serve as an associate justice on the Supreme Court?

As the controversy has unfolded, it has become painfully clear that perjury just isn’t important to conservatives, at least to conservatives who aren’t lawyers. Time and time again, in addressing the controversy, they ether have glossed over the possibility that Kavanaugh committed perjury or made it clear that it just doesn’t matter to them. It’s no big deal. Let’s just have a quick, 3-day, cursory, sham investigation, confirm the guy, and then “move on.”

I suppose this shouldn’t surprise us. Conservatives took the same approach with respect to James Clapper, the former director of national intelligence. Once it became clear that Clapper had committed perjury before Congress with respect to the national-security establishment’s secretive mass surveillance schemes, conservatives took the position that the offense should be ignored and that it was time for Americans to just “move on.” No investigation. No prosecution. No nothing. For conservatives, it was just perjury. No big deal.

Kavanaugh supporters, led by President Trump, have have made a big deal of how Democrats have been using the Ford accusation as a political weapon. Well, duh! When it comes to both politics and ideology, every libertarian knows that there isn’t a dime’s worth of difference between Republicans and Democrats. They are cut out of the same ideological and political cloth and their fight is always over power, control, and access to welfare-warfare state largess.

Regardless, once Christine Blasey Ford came forward with a credible allegation of sexual assault and once it appeared that Kavanaugh might have committed perjury, both with respect to the primary accusation and the rest of his testimony, it was incumbent on the U.S. Senate, both Republicans and Democrats, to conduct a full investigation into the allegations.

Otherwise, there was the very real danger that a lawyer who might well have committed perjury would end up serving on the Supreme Court of the United States. That obviously is not a big deal for the average conservative who isn’t a lawyer. It is an enormous deal for anyone who has a law degree. The importance of truth in the judicial process is ingrained in every law student from the first day he enters law school.

Thus, my position from the beginning has been: Conduct a full investigation into whether Brett Kavanaugh did in fact commit perjury in his testimony before the Senate Judiciary Committee. At the risk of belaboring the obvious, the fact that he is a federal judge doesn’t permit him to commit perjury. His position as a judge would actually make it worse.

What I couldn’t understand is why Republicans would be so opposed to a full investigation. Indeed, I couldn’t understand why Kavanaugh himself wouldn’t welcome a full investigation. After all, theoretically it could exonerate him. Wouldn’t that be better for him rather than to enter the Supreme Court under a cloud?

Moreover, I couldn’t see any downside to a full investigation. How could it hurt? At best it would ensure that an alleged perjurer would not end up on the highest court of the land. At worst, it would entail a relatively short delay in the confirmation process. Wouldn’t such a delay be worth it? What’s the rush?

Who has the responsibility of conducting a full investigation into the allegations? That would be the U.S. Senate, specifically the Senate Judiciary Committee. They are our agents — our elected representatives —who are charged with the responsibility under the Constitution to advise and consent with respect to presidential nominations.

Keep in mind that every federal official, including the members of the U.S. Senate and the Supreme Court, works for us. We are the masters and they are the servants, not the other way around. As part of their responsibility to determine whether Brett Kavanaugh should be given this job, the members of the U.S. Senate, acting on our behalf, should have immediately conducted a full investigation into whether or not he committed perjury before the committee.

instead, in one of the standard acts of political cowardice that has come to characterize Congress, they delegated that responsibility to President Trump, who, not surprisingly, used the FBI to conduct what everyone knows is a strictly limited sham “investigation,” one that could provide a fig leaf to Republic senators, enabling them to dutifully line up behind Trump’s nominee.

Another thing that has mystified me during this controversy has been the insistence among Republicans that Brett Kavanaugh be given this job. I kept asking myself: Why him, especially after his conduct before the Senate Judiciary Committed? Certainly there are other conservative lawyers and judges to pick from.

But then it hit me. In their minds, Kavanaugh is probably the best they have compared to all other conservative prospects for the job, which has to be why Republicans are so determined to get him in, even if it is possible that he committed perjury and lacks the judicial temperament for the job.

Which raises an important point: It’s time for presidents to start seriously considering libertarian lawyers and judges for the Supreme Court. Libertarian lawyers like Judge Andrew Napolitano, New York University law professor Richard Epstein, Georgetown University law professor Randy Barnett, Arizona Supreme Court Justice Clint Bolick, and others. There are many libertarian lawyers who are perfectly qualified to serve on the Supreme Court and who do not have the cloud of a perjury allegation or sexual-assault allegation hanging over their heads.

Every libertarian knows that Kavanaugh is going to be a disaster insofar as freedom is concerned, just as any other conservative lawyer would be, and, for that matter, just like any liberal (i.e., progressive) justice would be. As statists, they are all irrevocably committed to supporting the constitutionality of such massive infringements on liberty as the drug war, the PATRIOT Act, mass surveillance, FISA courts, the national-security establishment, cop killings, assassination, torture, foreign interventions, conscription, the welfare state, Social Security and Medicare, government regulations, trade and immigration controls, and all the rest.

A libertarian justice, on the other hand, would be irrevocably committed to preserving the liberty of the American people, which necessarily entails strict enforcement of the U.S. Constitution.

In 1987, President Reagan nominated a lawyer and judge named Douglas Ginsberg to serve on the U.S. Supreme Court. At the time, Ginsburg was serving as a judge on the D.C. federal court of appeals, the same court that Kavanaugh is serving on. Ginsberg was as close to being a libertarian as a conservative can be. Because he had smoked marijuana, however, he was deemed unqualified to serve on the Supreme Court and was forced to withdraw his name from consideration.

In other words, smoking marijuana is enough to disqualify a lawyer from serving on the Supreme Court. That a lawyer might have committed sexual assault and perjury isn’t.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.