By Rebecca Niburg #ourvoicesourmaryland Contributor
Elections have consequences. This oft-repeated trope could not be any clearer during the current administration which has the opportunity to not only control the execution of laws but also to nominate two justices to the Supreme Court out of the 9 total seats. The Constitution sets up the Supreme Court as the most independent of our three branches of government with justices not being swayed by popular opinion in the need to gain votes to retain their seats. The Supreme Court has also traditionally maintained its distance from politics and elections, preferring to issue rulings with lengthy and thorough discussions of law, regulation, and policy. Of course, cases and issues appear before the Court concerning the hot issues of each time and the Court duly issues decisions shaping social policy. In doing so, however, the Court traditionally has indicated its distaste in being pulled into questions that concern societal values as opposed to legal interpretation.
The nomination of Brett Kavanaugh to replace Justice Kennedy is thereby particularly troubling. The opposition to his nomination does not involve his conservative leanings, a President is expected to appoint judges and justices that share his philosophy and a Republican President can be expected to nominate a person with conservative views. Instead, this nomination amounts to an attack on the actual independence of the judicial branch. Traditionally, nominees for the high court refrain from answering questions during their confirmation hearings regarding particular issues, reserving those determinations for when cases containing the facts are presented before them on the Court. Judge Kavanaugh, however, has been quite vocal about his positions on various subjects, indicating how he may rule on certain cases, even before being presented with the particular facts.
One position that seems particularly apt considering the current investigation being conducted by Robert Mueller is that presented in a 2009 law review article in which he advocates for a law to protect sitting presidents from legal actions including criminal investigations. In other words, the same judge who determined that voting was too partial and political, causing him to cast his last vote in 2006, decided that writing that law review article was consistent with acting as an independent judiciary. Judge Kavanaugh’s words at the announcement of his nomination: “A judge must be independent and must interpret the law, not make the law,” ring hollow when juxtaposed against his history of asserting opinion outside of cases presented to him as a judge.
Many reasons exist to oppose Judge Kavanaugh’s nomination to the high court – his views on abortion, his record in upholding corporation’s actions over environmental protections, his justification of the use of torture in intelligence gathering, to name only a few – however, the most concerning of all is the assault on the independence of the judiciary. Thankfully, the latest poll numbers show that only 30 percent of Americans want Kavanaugh confirmed, a decrease in three percentage points from his initial nomination. (The only two Supreme Court nominees in history as unpopular as Kavanaugh were Harriet Miers and Robert Bork. Bork was voted down in the Senate, and Miers withdrew from consideration before the Senate voted.)
We as Marylanders have to keep up the pressure against the nomination. We must show those Senators who are undecided about their vote that there are repercussions for going against the will of the people and we must urge our friends in other states, particularly Maine and Alaska, to pressure along with us. The hearing and vote will happen shortly before the November election and we must remind all elected officials that their actions have as many consequences for elections as the results of the elections have on us.
The views expressed here are the author’s and do not necessarily represent the views of Our Maryland or Our Maryland Education Fund.