There is a major difference between our Supreme Court and most other democracies.
Perhaps 99% of the time the Court decides what are primarily matters of legal interpretation – it is the Court’s job to say “what the law is.” The other one percent is purely political. Thus, eight or nine unelected individuals, secure in lifetime appointments, can determine the political fate of 325,000,000 people! And that can have a lasting effect as long as 30 plus years.
Now we have an even worse case coming before us.
A President who is being accused of both illegal and improper actions – which quite likely made the difference in his election – has appointed a man (admittedly a competent lawyer) whose past record underlines his extreme views on impeachment and executive authority, which go well beyond legal interpretation and deeply into the realm of politics.
In a world of balance and fairness, it stands to reason that pending the resolution of the many investigations into the President, the appointment of such a vital Justice should be held in abeyance. It is highly likely that the Supreme Court will be called upon in the not-to-distant future to render judgement on a subpoena of the President to testify before a grand jury; the ability of the Justice Department to indict a sitting President; the legitimacy of the Mueller investigation; or a President’s authority to pardon himself. Whether one or all of these issues appear before the Court, the idea that a sitting justice, appointed by the President in question, would render judgement in the case is offensive to constitutional norms and the sensibilities of a democracy.
Our Constitutional system carefully provided for terms for the political officials—2 years for the House, 6 years for the Senate and 4 years for President. That clearly suggests that the Framers knew it was important to set limits on political power in order not to freeze anything for too long. They clearly NEVER contemplated today’s situation where such limits could be stretched to a breaking point – it is, after all, reasonable to ask whether the nation can survive two more years of the Trump presidency without real and lasting damage.
If there is one powerful argument to suspending Kavanaugh’s confirmation, this is it. Perhaps at least one or two Republican Senators as well as all Democrat Senators might think about this before they vote.