Some Historical Perspective on Supreme Court Confirmations

Supreme Court

Rhodes College historian Timothy Huebner, author of a series of lectures on the Supreme Court, reminds us that 19th-century debates over the confirmation of Supreme Court justices were more contentious than what goes on today.  Here is a taste of his recent piece at The Washington Post:

But if our current nomination and confirmation process for Supreme Court justices is broken, as many have suggested, it is not because it has become more political than it used to be. Instead, history shows that the appointment process may actually be less political than it was during the 19th century. But transformations during the 20th century have gradually left politics and ideology as the main battleground in confirming judges, leaving the false impression that the process is far worse than in the past.

During the first century or so of the Supreme Court’s history, selecting and confirming judicial nominees was political and sharply contentious. From the start, presidents picked nominees whom they assumed generally agreed with their political philosophy, and some, such as Andrew Jackson and Abraham Lincoln, even rewarded cronies with seats on the court. Unlike today, many nominees for the court lacked prior judicial experience. In fact, of the 57 justices nominated and confirmed between 1789 and 1898, 17 lacked substantial judicial experience at either the state or federal level. Instead, they were private attorneys, legislators or Cabinet secretaries. 

Read the rest here.

The Price Evangelicals Will Pay for a Supreme Court Seat

Believe Me 3d

Ever since I released Believe Me: The Evangelical Road to Donald Trump I have been trying to get my fellow evangelicals to see that their bargain with Trump is bad for the Gospel and its public witness in the world.

Doug Pagitt, pastor of Solomon’s Porch in South Minneapolis, seems to agree.  Here is a taste of his recent piece in USA Today: 

Religious leaders have given up moral ground at every renewed show of support for this administration and Congress. They stood by as families were torn apart at our border, the children shipped off to remote detention camps in the middle of the night. They cheered as health care was stripped away from the poor and the sick. And they fell in line to support the newly confirmed Justice Brett Kavanaugh, who was credibly accused of harming multiple women. These are not positions informed by the teachings of Jesus Christ — to the contrary, they are antithetical to what Jesus preached.

So why are so many white evangelicals dead-set on supporting the Trump administration and current Republican Congress? Their insistence on walking in lockstep with the Republican Party often is primarily motivated by a single issue: abortion.

Many of us are taught from a young age that abortion is the issue on which our vote should always hinge. The hope among many evangelicals is to make abortion illegal. Evidence, however, suggests that criminalization does not reduce abortions. In fact, studies show that criminalizing abortion does nothing to protect babies, but instead endangers mothers.

Read the rest here.

David Brooks: “A Complete National Disgrace”

Senate Holds Confirmation Hearing For Brett Kavanugh To Be Supreme Court Justice

There is little I disagree with in David Brooks’s analysis of Kavanaugh hearings.  Here is a taste:

These hearings were also a devastating blow to intellectual humility. At the heart of this case is a mystery: What happened at that party 36 years ago? There is no corroborating evidence either way. So the crucial questions are: How do we sit with this uncertainty? How do we weigh the two contradictory testimonies? How do we measure these testimonies when all of cognitive science tells us that human beings are really bad at spotting falsehood? Should a person’s adult life be defined by something he did in high school?

Commentators and others may have acknowledged uncertainty on these questions for about 2.5 seconds, but then they took sides. If they couldn’t take sides based on the original evidence, they found new reasons to confirm their previous positions. Kavanaugh is too angry and dishonest. He drank beer and threw ice while in college. With tribal warfare all around, uncertainty is the one state you are not permitted to be in.

Read the rest here.

Brooks’s point about intellectual humility is an interesting one, especially for historians.  How do we treat out sources?  How do we use those sources to find out “what happened?”  What can and can’t we know?  Any historian knows that this is a difficult task and one in which knee-jerk reactions and political rhetoric are not always helpful in getting at the truth.

Chris Dudley Could Wield a Bar Glass, but He Couldn’t Hit a Free Throw to Save His Life

Have you seen the latest in the Brett Kavanaugh affair?  During his junior year at Yale, Kavanaugh got into a bar fight.  During the fight his friend Chris Dudley, a 6’11” center on the Yale basketball team, smashed a glass over the head of a guy who they original thought was the lead singer of UB40.  (Yes, you are reading this correctly).

As a long-suffering New York Nets fan, I can safely say that Dudley was more accurate with a glass in a bar fight than he ever was from the free-throw line.  I think Marv Albert would agree:

 

White Evangelicals and the New Marist Poll

Blasey

Here are some of the findings:

  • 72% of white evangelicals approve of the job Donald Trump is doing as president (and 44% “strongly approve).
  • 71% of white evangelicals say that they will vote for a Republican in the 2018 midterms.
  • 58% of white evangelicals say that they are likely to vote for a congressional candidate in November 2018 who supports the confirmation of Brett Kavanaugh to the Supreme Court. (27% of white evangelicals say that the confirmation of Kavanaugh will not make any difference in how they vote in November 2018).
  • 56% of white evangelicals have a “favorable impression” of Brett Kavanaugh. (31% are either “unsure” or have “never heard” of Kavanaugh).
  • Only 9% of white evangelicals have a “favorable impression” of Christine Blasey Ford.  59% of white evangelicals are “unsure” of her or have “never heard” of her.
  • 51% of white evangelicals have been following the Kavanaugh news coverage “very closely” or “closely.”
  • If Kavanaugh did commit the acts that Christine Blasey Ford said that he did, 48% of white evangelicals would still support his confirmation to the Supreme Court.
  • Only 14% of white evangelicals think Christine Blasey Ford told the truth about what happened at the party in high school.  41% are “not sure” who to believe.
  • 64% of white evangelicals support the nomination of Brett Kavanaugh.

Liberty University Students Came to the U.S. Senate on Thursday to Support Kavanaugh

Liberty U Kavanaugh

Liberty University staged a rally for Kavanaugh (Huffington Post photo)

And their president, court evangelical Jerry Falwell Jr., was with them.

The Lynchburg News & Advance reports:

About 300 Liberty University students traveled to Washington, D.C. Thursday to support Supreme Court nominee Brett Kavanaugh, who is under fire with two accusers alleging sexual assault and another claiming to have witnessed such behavior.

While the marathon Senate Judiciary Committee hearing unfolded on Capitol Hill, Liberty students attending a Concerned Women for America and Women for Kavanaugh rally. They also visited the office of Sen. Chuck Grassley (R-Iowa) to show their support for the Judiciary Committee chairman.

“We wanted [Kavanaugh’s] voice to be heard … and to support him and his family,” said Victoria Belk, an LU student and president of LU’s Young Women for America, a college chapter of CWA. “True equality is hearing from both sides; hearing him out was important to us.”

Read the rest here.  The Huffington Post has posted a video of the rally here.

Over at Religion News Service, Jason Lupfer argues that conservative evangelical support for Kavanaugh will cost them.  Here is a taste of his piece:

Politically,  white conservative Christians have been invaluable to the country club wing of the Republican Party, which put their zeal to work to end an era of social progress on civil rights, economic equality and fiscal health. The old guard used its newfound clout to enact deficit-financed tax cuts, decimate the labor movement and shift an ever higher percentage of the national income to those at the very top.

Meanwhile, their own principles suffered.

Few white evangelicals or conservative Catholics were put off by the party’s embrace of leaders who demonized Islam, disparaged undocumented immigrants and rolled back voting rights. They helped ensure that the Republicans ended up abandoning morality altogether and nominating for president a vulgar, spiteful man who boasted of his own sexual assaults.

Now it seems that president has nominated a judge who shares the political values of conservative evangelicals but may have violated many of their morals. Drunken parties and sexual assault are the kinds of things that Liberty University — and Concerned Women for America — have abhorred in the past.

But they no longer seem to give these conservative evangelicals pause.

So often when religion and politics mix, religion is sullied. As the evangelicals have risen in prominence, we have heard less and less about the Old, Old Story, and wondered if they even believed it at all.

The country has suffered under this partnership as well.

Read the entire piece here.  Much of what Lupfer writes here meshes well with my own work in Believe Me: The Evangelical Road to Donald Trump.

Believe Me 3d

Quote of the Day

Dante

Liberty University English professor and author Karen Swallow Prior on the Kavanaugh nomination and the Blasey Ford accusations:

“I don’t expect we will ever know the truth about what did or did not happen. But as an evangelical Christian, I am convinced Dante himself could not have devised a more fitting circle of hell for my faith community than the one in which we find ourselves: being destroyed from the inside out by the sexual sin we spent decades pointing out everywhere but in our own house. For us, this is the real trial.”

Source

The Court Evangelicals are Getting Antsy about the Possibility that Kavanaugh Will Not be Confirmed

Kavanaugh

P

Here is Jeremy Peters and Elizabeth Dias at The New York Times:

Worried their chance to cement a conservative majority on the Supreme Court could slip away, a growing number of evangelical and anti-abortion leaders are expressing frustration that Senate Republicans and the White House are not protecting Judge Brett M. Kavanaugh more forcefully from a sexual assault allegation and warning that conservative voters may stay home in November if his nomination falls apart.

Several of these leaders, including ones with close ties to the White House and Senate Republicans, are urging Republicans to move forward with a confirmation vote imminently unless the woman who accused Judge Kavanaugh of sexual assault, Christine Blasey Ford, agrees to share her story with the Senate Judiciary Committee within the next few days.

Ralph Reed thinks that the failure to confirm Kavanaugh before the November 2018 elections will make it “very difficult to motivate and energize faith-based and conservative voters.”  I don’t understand the logic here.  If Kavanaugh is not nominated, most conservative evangelicals I know would be highly motivated to vote in November. They will want to make sure the GOP controls the Senate so that Trump’s replacement for Kavanaugh will be confirmed.

Tweets of the Day: Merrick Garland

 

What Will Evangelicals Do if Kavanaugh’s Nomination Fails?

Kavanaugh

An MSNBC White House correspondent believes that white conservative evangelicals will “crucify Trump” if the Brett Kavanaugh nomination fails.

Here is a taste:

MSNBC White House correspondent Yamiche Alcindor said Monday that if President Trump loses his fight to put conservative Brett Kavanaugh on the Supreme Court, his religious base may lose whatever faith they have in the man many of their sect believe was chosen by God to lead the country.

“Sarah Sanders is echoing a lot of the reaction of a lot of evangelical Christians when I asked them how they support President Trump,” Alcindor said. “They say this is someone who can be used even if he’s problematic, even if he in their mind has sinned, that he can still be someone who puts forth policies that can help people’s lives.”

But in the event that Trump fails to appoint Kavanaugh to the court, where he could be the deciding vote on an number of their political goals, conservative Christians will like flee, Alcindor believed. “This is one of the number one things that evangelical Christians wanted out of this president,” she said. “They wanted a Supreme Court that was going to try to overturn Roe v. Wade, that wasn’t going to be pro-choice, that was going to be a pro-life Supreme Court.”

I don’t see it this way.  If the Kavanaugh nomination fails, Trump evangelicals will blame the liberals.  They will not blame Trump.  Trump will nominate another conservative justice off the Federalist Society or Heritage Foundation list and we will go through all of this again.  A failed Kavanaugh nomination will not weaken conservative evangelical support for the president, it will strengthen it.

David Brooks: “Don’t make up your mind about Kavanaugh without reading this”

Read Caitlin Flanagan’s story at The Atlantic.  It is worth your time.  Here is a taste:

“Dear Caitlin,” an inscription in my 12th-grade yearbook begins. “I’m really very sorry that our friendship plummeted straight downhill after the first few months of school. Really, the blame rests totally on my shoulders. To tell you the truth, I’ve wanted to say this all year. I know you’ll succeed because you’re very smart and I regard you with the utmost respect … Take care—love always.”

He was headed to a prestigious college. I was headed to a small, obscure liberal-arts college, which was a tremendous achievement, not just because I was a terrible student, but also because I had nearly killed myself as a response to what he apologized for in my yearbook. He had tried to rape me during a date that I was very excited to have been asked on, and his attempt was so serious—and he was so powerful—that for a few minutes, I was truly fighting him off.

Read the rest here.

Hey Ben Sasse, What About Merrick Garland?

7954c-sasse

This morning I praised Ben Sasse for his powerful speech yesterday during the Brett Kavanaugh hearings.  I still do.  Sasse chided his fellow Senators for not doing their jobs as defined by the Constitution.

But where was Sasse’s constitutional principles when his party decided not to give a hearing to Merrick Garland, Barack Obama’s choice to replace Antonin Scalia?  Where was the Senate’s lively and engaged debate, the kind of stuff Sasse talked about in his Kavanaugh speech?  At the time, Sasse didn’t say much about Garland. But as I see it, he certainly didn’t defend the Senate’s constitutional requirement to advise and consent.  Sasse was complicit in this partisan attempt to undermine Obama’s appointee.

Here are a couple links:

According to this Washington Post graphic, Sasse did not support hearings for Garland and refused to meet with him.

When NPR’s Steve Inskeep asked him about why the GOP turned the Merrick nomination into a partisan issue, Sasse dodged the question.

Al Mohler Pontificates on the Origins of the Culture War

KavanaughWho “started” the culture wars?

Recently some members of the Evangelical left called for a “pause” to the culture wars.  Evangelical women want Congress to reject the Brett Kavanaugh Supreme Court nomination and appoint a more moderate justice.  Read about their efforts here.

Meanwhile, Al Mohler, the conservative evangelical president of Southern Baptist Theological Seminary, has told PJ Media that such efforts are “doomed to failure.”  Here is a taste of Tyler O’Neil’s piece:

“The ‘Call to Pause’ is just the latest effort by the Evangelical left to blame the culture war on conservatives,” Al Mohler, president of the Southern Baptist Theological Seminary (SBTS), told PJ Media Sunday. He insisted that the “Call to Pause” is doomed to failure, and more likely to damage the reputations of its supporters than to achieve any cultural or political change.

Here is more:

Mohler fought back against the idea that conservative evangelicals are to blame for the culture war. “It was liberals who pushed the new ethic of personal autonomy and sexual liberation, and it was liberals who championed legalized abortion and celebrated the infamous Roe v. Wade decision in 1973,” the SBTS president told PJ Media.

He noted that “you can date organized evangelical involvement in American politics to Roe v. Wade,” noting that the conservative evangelical movement was largely a reaction to the Left’s culture war coups achieved by the Supreme Court. This became even more clear in light of Obergefell v. Hodges (2015), which supercharged conservatives’ emphasis on the Supreme Court.

“Now, just after the nomination of a clearly conservative judge, Brett Kavanaugh, as the next justice of the Supreme Court, the evangelical left is predictably opposing the nominee, and calling for a ‘pause’ in the culture war,” Mohler noted. “Amazingly enough, those behind the ‘Call to Pause’ are transparent about their fear that Roe v. Wade might be reversed, or even that abortion rights might be curtailed.”

A few thoughts:

  1. Mohler is often at his dogmatic worst whenever commenting on sexual politics.  I do not expect Mohler to agree with the evangelical women who oppose Kavanaugh’s nomination, but why does he have to come across as such an authoritarian ecclesiastical strongman whenever the issue he is addressing involves evangelical women?  One thinks he might have learned something about the voices of women in his denomination.
  2. Mohler pins the entire culture war on Roe v. Wade.  While this Supreme Court case played an important role in mobilizing the Christian Right, it is much more complicated than this.  But nuance, of course, will not help Mohler and his friends win the culture wars.
  3. Mohler continues to operate on the old Christian Right playbook for winning the culture wars.  If we nominate the right Supreme Court justice, the playbook teaches, the problem of abortion will go away.  For some context on this playbook see Believe Me: The Evangelical Road to Donald Trump.

Court Evangelical Robert Jeffress Stays the Course

As I said this morning on CNN (no video available yet), it doesn’t matter what Trump did with Karen McDougal or whether or not he is lying about it. As long as Trump keeps appointing Supreme Court justices like Brett Kavanaugh and Neil Gorsuch and continues to give lip service to religious liberty (as understood by conservative evangelicals) he will have the support of evangelicals.

This kind of thing should thus no longer surprise us:

I have not yet heard Jeffress compare Trump’s lack of morality to Ronald Reagan’s indiscretions.  Interesting.  Actually, I think there are comparisons we can make between Reagan and Trump.  For example, evangelicals in pursuit of political power got into bed with both of them.  It wasn’t a good idea then (just ask Cal Thomas) and it isn’t a good idea now.

 

Do We Need 27 Supreme Court Justices?

Toobin-Supreme-Court

There is nothing in the United States Constitution that says we must have nine Supreme Court justices.  What about 27?  Rutgers University law professor Jacob Russell Hale thinks it might be a good idea.  Here is a taste of his piece at Time:

The battle over court packing is being fought on the wrong terms. Americans of all political stripes should want to see the court expanded, but not to get judicial results more favorable to one party. Instead, we need a bigger court because the current institutional design is badly broken. The right approach isn’t a revival of FDR’s court packing plan, which would have increased the court to 15, or current plans, which call for 11. Instead, the right size is much, much bigger. Three times its current size, or 27, is a good place to start, but it’s quite possible the optimal size is even higher. This needn’t be done as a partisan gambit to stack more liberals on the court. Indeed, the only sensible way to make this change would be to have it phase in gradually, perhaps adding two justices every other year, to prevent any one president and Senate from gaining an unwarranted advantage.

Such a proposal isn’t unconstitutional, nor even that radical. There’s nothing sacred about the number nine, which isn’t found in the constitution and instead comes from an 1869 act of congress. Congress can pass a law changing the court’s size at any time. That contrasts it with other potentially meritorious reform ideas, like term limits, which would require amending the constitution and thus are unlikely to succeed. And countries, with much smaller populations, have much larger high courts. In 1869, when the number nine was chosen, the U.S. was roughly a tenth of its current size, laws and government institutions were far smaller and less complex, and the volume of cases was vastly lower. Supreme Court enlargement only seems radical because we have lost touch with the fundamentals of our living, breathing constitution. The flawed debate over court-packing is an opportunity to reexamine our idea of what a Supreme Court is, and some foundational, and wrong, assumptions.

Read the entire piece here.

An African-American Evangelical on the Brett Kavanaugh Nomination

 

Kavanaugh

President Donald Trump announces xxxxx as his Supreme Court nominee, in the East Room of the White House, Monday, July 9, 2018, in Washington. (AP Photo/Evan Vucci)

John C. Richards, the Managing Director of the Billy Graham Center at Wheaton College, is not overjoyed about Donald Trump’s pick of Brett Kavanaugh to replace the retired Anthony Kennedy.  Here is a taste of his piece at Christianity Today:

This tenuous relationship between judicial appointments and partisanship is why I am less excited about Kavanaugh’s nomination—especially when couched in terms of conservatism. While a more conservative court may be good for America, it hasn’t always been good for Blacks in America.

For many Black Christians, conservative strategies have historically had a disparate impact on our communities.

In Dred Scott vs. Sandford, a conservative court previously held that people of African descent could not be U.S. citizens. For the record, in the history of the Supreme Court, the Dred Scott case is regarded as the court’s worst decision.

Conservative strategies created the War on Drugs in the 1990s that has led to the U.S. far outpacing any other nation in the world in mass incarceration rates—which has resulted in a disproportionate amount of people of color in prisons across our country.

The truth is that many Black Christians aren’t so much looking for a more conservative court as they are looking for a more fair and neutral court—devoid of political influence.

Tempered Celebration

Ultimately, I want to encourage my White brothers and sisters in Christ to temper their celebration a bit. To be fair, many Black Christians would render a hearty amen to right to life and religious freedom issues that led many White Evangelicals to vote the way they voted in November 2016.

But let me be clear here. If there’s any concern about the Black exodus from Evangelicalism, we need to be sure that right to life is a womb-to-tomb issue—valuing human life and rights from conception to death.

We need to be sure that religious freedom and free speech extends to athletes who silently protest social issues in public spaces. We need to call out the hypocrisy of NFL owners who ask athletes to “just play football” and turn around and endorse federal judicial nominations on team Twitter accounts.

To make this nomination about Roe and dough (i.e. the religious freedom highlighted in the Christian baker case) ignores other essential issues Christians should care about—including immigration, health care, and labor laws.

Read the entire piece here.

Kavanaugh is the Pick. Not all Conservative Evangelicals are Happy

Kavanaugh

Conservative evangelicals have had mixed reactions to the selection of Brett Kavanaugh as Anthony Kennedy’s replacement on the Supreme Court.  Over at VOX, Tara Isabella Burton sorts it all out for us.  Here is a taste:

The major Christian right figures in Trump’s orbit have largely greeted news of Kavanaugh’s confirmation with measured, if vague, optimism, celebrating the choice of a conservative judge more generally, and casting the news as a win for Trump specifically. The promise of a more conservative Supreme Court has long bolstered Trump’s support among evangelicals, and many leading evangelicals have framed the news in terms of Trump keeping his promises to that community.

Robert Jeffress, one of Trump’s most significant evangelical advisers, said in a statement emailed to journalists, “Evangelicals are ecstatic because in less than two years President Trump has filled a second Supreme Court vacancy with a second conservative—just as he promised. The fact that the president chose another conservative justice is more important than the name of that justice. This is a huge win for President Trump.”

Likewise, Paula White, another of Trump’s main evangelical advisers, highlighted how Trump’s pick of Kavanaugh showed that “President Trump has done it yet again, fulfilled a promise exactly as he said he would.”

Some conservative Christian organizations have expressed their doubts on Kavanaugh, however. The American Family Association formally opposed the nomination, saying in a statement that “Judge Kavanaugh’s reasoning on religious liberty, Obamacare and issues concerning life have proven to be of major concern.”

Overall, however, the fact that Kavanaugh is seen as a “moderate” pick on religious liberty cases tells us more about the nature of discourse about religion in America than it does about Kavanaugh himself. Sure, by the standards of an administration that regularly cites the Bible to legitimize its complete authority, that has produced executive orders demanding that “religious liberty” be observed by the Department of Justice even when it conflicts with anti-discrimination laws, and that regularly implies Trump was chosen by God, Kavanaugh is a moderate.

Read the entire piece here.