SCOTUS scores

The present moment is ripe to recall the Prize for Civility in Public Life that Allegheny College awards annually, and especially the latest recipients from 2017.

Allegheny began awarding the prize in 2012 as a quest to reverse “the rise of incivility in our democracy,” as college president James H. Mullen wrote at the time in naming columnists and NewsHour hosts David Brooks and Mark Shields as inaugural prizewinners.

The 2017 honorees for the prize were none other than Ruth Bader Ginsburg and (posthumously) Antonin Scalia.

The two U.S. Supreme Court justices were known to be fast friends, despite being political foes. In addition to sharing similar personal interests in travel, opera and wine, Ginsburg and Scalia shared something else: high confirmation vote scores.

Nominated by President Ronald Reagan in 1986, Scalia was approved in the Senate on a 98-0 vote. Nominated by President Bill Clinton seven years later in 1993, Ginsburg won her confirmation in a 96-3 vote (even after flat-out refusing to answer a number of questions in her hearings).

During that same short period Clarence Thomas eked out a 52-48 senate confirmation score, and Robert Bork’s nomination was rejected 42-58.

The character assassination of Bork, widely regarded as one of the most brilliant scholars ever nominated, was masterminded by senior Democratic senate leaders and special interest groups. If memory fails you, go back and read the “Bork’s America” scare-tactic speech given (with the straightest of faces) by Sen. Ted Kennedy just one hour after Bork’s nomination announcement.

The same Democrats who had voted “yea” for Scalia in 1986 just one year later bashed and dashed Bork’s nomination in the most uncivil attack in recent memory at the time.

Before Bork, here are the voting scores for the SCOTUS nominees starting in 1970: 94-0 (Blackmun), 89-1 (Powell), 68-26 (Rehnquist), 98-0 (Stevens), 99-0 (O’Connor), and 98-0 (Scalia).

Incredibly, with the single exception of Rehnquist, in 17 years prior only one senator cast a “nay” vote on a Supreme Court associate justice nomination.

The Bork lynching by Democrats—they had warned of a combative posture, but Reagan rightly characterized the Senate leadership’s collusion with leading special interest groups as a “lynch mob”—negatively altered the civility of such proceedings.

Prior to 1970, most SCOTUS nominees were confirmed by simple voice vote. Both of President John F. Kennedy’s nominees, three of President Dwight Eisenhower’s, two of President Harry Truman’s and seven of President Franklin D. Roosevelt’s were all confirmed that way, so no record of scoring exists for those.

The last SCOTUS justice to receive a unanimous confirmation vote is the one now retiring. Anthony Kennedy was confirmed 97-0 in 1987.

Since Ginsburg garnered her 96 “yea” confirmation votes 25 years ago this August, here are the SCOTUS scores: 87-9 (Breyer), 78-22 (Roberts), 58-42 (Alito), 68-31 (Sotomayor), 63-37 (Kagan), 54-45 (Gorsuch).

The paradigm shift that has rendered 90-something confirmation scores a thing of the past isn’t an accident. It’s a product of a distinctive and collective special interest strategic initiative, carried out by the political party prone to pander to those interests.

Fringe groups seeking radical change began to realize that while successful legislation often takes large sums of time and money, the Supreme Court can change the law for 320 million Americans in a single session, sometimes by a single vote. It has proven much easier at times to lobby and convince five SCOTUS justices instead of the majority of nearly 500 federal lawmakers.

That dynamic change, naturally, unduly politicizes the judicial nomination process, creating both contention and (as desperation born of a “live by the gavel, die by the gavel” potential pendulum swing emerges) increased incivility.

With the announcement of the next SCOTUS nominee just days away, liberal groups are already planning tens of millions of dollars in ad campaigns to fan flames of unfounded fears. Political pressure affects senators, no doubt. On both sides of the aisle, for those facing less than certain re-election this confirmation vote will loom large as a career consideration.

It would be better if the political discussion could rise above the next nominee to the more substantive issue of the shaky footing that law-by-SCOTUS-decree creates. That argument—convenience of court rulings versus consensus of legislation—has been a long time coming, and though painful, will in the end be good medicine for both the Democratic Party and the nation as a whole.

There wouldn’t be frenzied worries over Roe v. Wade had the abortion lobby simply persevered for statutory (or even constitutional amendment) success. At the time, and still today, that ruling was widely criticized as lacking sufficient underpinning in law.

But hey, with a friendly court, it worked.

The fact that special interests are overwrought now about a possibly unfriendly court signifies a colossal problem–not with those groups, but with the modern “law by judicial decree” process. Self-government must rely on elected representatives in Congress and the 50 state legislatures. The only way that works is for the Supreme Court to exercise self-restraint.

Justices are ill-equipped to make law (they’re the furthest thing from representative), which isn’t their job anyway. We need nominees who respect that above all. Hopefully that’s the kind we’ll get next.

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America the unique

Oftentimes, in public discourse over current divisive or polarizing issues, comparisons are thrown up with other countries. On matters such as gun crime, or taxation, or health care, it’s easy to present statistics from nations elsewhere and portray the variances as persuasive to the partisan point. Sometimes, in some ways, such contrasts contain some validity.

But the inherent problem in all comparative analysis invokes the old fruit cliché, and its justified invalidation when differences in the subjects compared are too great. Practically put, it’s impossible to ever have an “apples to apples” comparison between the United States and any other nation on earth.

The holiday on next week’s hump day highlights this truth.

There simply is not now and has never been another democratic republic of our geographic size or population or age, self-chartered and self-governed according to the set of principles, morals and social precepts that culminated in our Declaration of Independence.

In addition to America the Beautiful, we are America the Unique.

We’re the third most populous country—and none of the other top 10 remotely resemble us in form of social construct and constitutional governance. That’s primarily because none of them have our history. Indeed, most other countries have histories that run completely at odds with ours regarding life, liberty and the pursuit of happiness.

Our singularity is not a slam against other nations, but rather a celebration of distinctive national achievement, albeit one that falls short of the ideal in preserving the ideas that delivered it.

Business leaders today see value in employees understanding the corporate core values and “living the mission” of the organization. But if all a CEO did toward that end was host an annual picnic, few would expect much in the way of results.

Those businesses that excel in that regard do much more: They take a practical approach involving multiple communication channels, from posters on the wall and pocket guides, to accountability measures that improve work habits to align with company values.

By the same token, there is supreme value to the republic in our citizens understanding the core values that produced our independence.

The festivities each Fourth of July can commemorate and celebrate our core principles and self-evident truths, but it is not enough to perpetuate them.

Businesses encourage employees to be able to recite a 30-second “elevator speech” about the company. How many Americans can summarize the Revolution so concisely? More alarmingly, how many would misstate the matter entirely?

“What do we mean by the American Revolution?” John Adams wrote in a letter in 1818. “Do we mean the American war? The Revolution was effected before the war commenced. The Revolution was in the minds and the hearts of the people; a change in their religious sentiments, of their duties and obligations …

“This radical change,” he said, “in the principles, opinions, sentiments and affections of the people was the real American Revolution.”

But what brought on that change? The piece of paper adopted in Congress on July 4, 1776, wasn’t the spark; it was, as titled, a declaration and explanation.

Many people don’t want to be bothered with “getting into the weeds” of the philosophers and thinkers—some from antiquity—who shaped the founders’ views. Likewise, many employees get annoyed with so much focus on vision, mission and core values, when there’s actual work to be done.

The key in both instances is that knowledge and understanding are critical to performance.

Part of our political polarity today stems from fundamental misunderstandings about the spirit of liberty as conceived in colonial America.

Indeed, it’s impossible to understand how radical our nation’s notion of liberty was without first understanding what it was before to other nations and other civilizations. Without appreciating the longstanding social orders of royalty, nobility and commons, and the traditional relation between law and divine right, it’s difficult to fathom the full attainment of freedom achieved by the American colonists.

Even the word “constitution” conveyed an altogether different meaning in 1760 than it does for us today. Comprehending how that word evolved from its common definition then as describing the entwined existence of a political system to a limiting charter of government power in 1787 is central to grasping American liberty–and its need for fervent protection.

We take the world we live in for granted. Our plenty is an anomaly among the world’s hungry billions; intellectually we might know of starving peoples in faraway places, but it is disconnected from our daily consumption, as evidenced by our sizable BMI statistics.

We take our liberty even more for granted.

There are tens of millions of people trying to reduce their weight, and countless weight-loss programs and speakers and websites and documents to assist them. Were that even half as many people sought to truly understand the radical change in Americans that produced the United States!

Mention Algernon Sidney or Cato’s Letters at your cookout next week and gauge the blank stares. Better yet, commit to yourself to Google them (both were foundational to the Revolution). Even if you only read a little, you and your holiday spirit will be better for it.