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In his appearance before the Senate Judiciary Committee last week, Brett Kavanaugh put on a prodigious display of vacuity and mendacity. Kavanaugh is the retrograde jurist picked by Donald Trump to fill the Supreme Court vacancy that arose when the Court’s “swing vote,” Anthony Kennedy, retired.
His politics is god awful, but that is hardly news. It was a sure thing that Trump would nominate someone with god-awful politics. Because he knows little and cares less about the judicial system, except when it impinges on his financial shenanigans, and because, as part of his pact with “conservatives” Trump outsourced judicial appointments to the Federalist Society, anyone he would nominate was bound to come with god-awful politics.
At least, this particular god-awful jurist is well schooled, well spoken (in the way that lawyers are), and intelligent enough to talk like a lawyer or judge, while dissembling shamelessly and saying nothing of substance. That puts him leagues ahead of Trump. It also puts him head and shoulders above the average Republican.
But let’s not praise him too much on that account; much the same could be said of Ted Cruz. Because politically the two of them are so much alike, it is instructive to compare Kavanaugh with that villainous Texas Senator.
Cruz is perhaps the most detested legislator in Washington. It has been said of him that “loathsome” attaches to his name in the way that, in the Iliad, “fleet footed” attached to the name of Achilles
On the other hand, Kavanaugh is said to be a nice guy. As much or more than his qualifications, the GOP public relations line on him focuses on what a fine, husband, father, neighbor, and colleague he is. Perhaps he really is. But why should anyone who doesn’t have to live with or otherwise deal with him on a personal basis care?
Could it be that his handlers don’t want anyone to think of him in the same frame as Cruz or, for that matter, the president who put his name forward? Niceness marks a clear difference between him and them.
His opponents emphasize the harm Kavanaugh will do if confirmed. They are right; his presence on the court will make the judiciary a bulwark of reaction for at least a generation.
By all accounts, Kavanaugh is at least as reactionary as Clarence Thomas, the most reactionary Supreme Court Justice in living memory. His confirmation will put every scintilla of social progress towards which the Supreme Court has contributed in recent and not so recent decades in jeopardy.
Unlike a Supreme Court Justice’s purported niceness, this is something everyone should care about.
Kavanaugh’s views are malevolent. The sad fact is, though, that this is not unusual in the federal judiciary and in “conservative” academic precincts. Quite to the contrary, what Kavanaugh thinks about politics and law is, in one form or another and in varying degrees, widely accepted — and also preposterous, indeed, idiotic, on its face.
It remains to be seen how much of an ideologue Kavanaugh is, and how much of a capitalist stooge. Practicing “conservatives” in the United States are more often stooges than not.
We can only hope that in the battle for the soul of Brett Kavanaugh, the ideology wins out. Thanks to its connections to a kind of legal theory and practice, and to a related strain of conservative political philosophy that, however dubious its merits, is at least not idiotic, Kavanaugh’s ideological commitments may be the best, if not the only, weapon against Kavanaugh-style idiocy available to us.
Suppose that the American “experiment with democracy” survives Trump and Pence – it is hard to believe but there are still liberal pundits who prattle on about that “noble experiment” on their cable channels and NPR. Suppose too that the world somehow avoids nuclear and ecological catastrophes. And suppose finally that in the fullness of time we get to a point where we can look back on our present and see it from a more perspicacious vantage-point than the one that comes naturally to persons living through it.
What will our political world look like from that perspective? We cannot know for sure, but even now, this much is clear: it will look weird.
Here we are with a president who is transparently unfit for the office he holds; this is common knowledge even within his own administration. Indeed, everyone sees it except the willfully blind and terminally benighted. The more than usually venal capitalists who support Trump for the sake of their bottom lines or who, like Sheldon Adelson and other rightwing Zionists, support him for other nefarious purposes, no doubt see it too. They just don’t care.
And yet, we are stuck with him – or with Mike Pence, the theocratically inclined Vice President he chose – for at least the next two years because, despite having garnered fewer votes than his opponent, the Electoral College made him president. Only in America!
Blame it on the Constitution. Its authors, our Founding Fathers (not a mother among them, except in a figurative sense!) saw to it that getting rid of a president by impeachment would be so hard to do that not one has been removed that way yet.
They also saw to it that even when a president leaves office before a new election is held, no matter how that comes about, that he (so far always a he) would be succeeded by his running-mate, and that the administration he put in place could, and probably would, remain intact.
This would be the case too were Trump removed through the much discussed Twenty-Fifth Amendment, enacted not in 1788, but in 1967. The Twenty-Fifth Amendment is supposed to come into effect only when the president is physically or mentally disabled, not just manifestly unfit, and it requires the assent of his Vice President and his cabinet.
Those vaunted Founding Fathers never claimed to be (small-d) democrats — but, even so, this is ridiculous.
They did see to it that the United States would have no king, but only an approximation of one who would rule for four-year stints between elections structured in ways that make a mockery of the democratic idea of equal political influence.
They also restricted the franchise or rather allowed it to be restricted – at first only to property-owning white males. Thanks to protracted struggles that proceeded in stages and took nearly two hundred years to complete, those restrictions are now mostly gone. Even so, we are not much closer than we were back in the early days of the republic to anything like substantive, not just formal, political equality.
And yet, we fetishize the document those Founding Fathers produced. How crazy is that!
To be sure, a few of them were serious political thinkers; and all of them put the Dreckwho call the shots nowadays to shame. This has been the case almost from the beginning.
Still, there is no getting past the fact that the Founding Fathers were southern planters and northern merchants, nearly all of whom benefited in one way or another from slavery or the slave trade, and none of whom questioned the right of European settlers to expropriate land from the peoples who had been living on it from time immemorial. They were fine too with subjecting indigenous peoples to cultural and physical genocide.
Even leaving that aside on the grounds that it is ancient history, why would anyone in the twenty-first century think that it makes sense to regard members of a pre-industrial gentry and bourgeoisie, occupants of class positions that strictly speaking no longer exist, as God-like oracles whose views on the state’s institutional arrangements ought to govern the very different world of today?
The only way to make sense of that is to regard the Constitution they wrote as a “living” document that changes according to how it is interpreted, and that is interpreted according to ever-changing attitudes and exigencies.
No matter what anybody says or thinks, the Constitution has to be treated that way, at least to some extent, if it is to have any legitimacy at all. But then why claim, Kavanaugh-style, that what ought to govern the present is what the Founding Fathers thought in the distant past?
Those Founders were enamored of private property, but they were not exactly capitalists or even proto-capitalists; they were (small-r) republicans – defenders of a political vision derived mainly from the study of such ancient examples as Sparta and the Roman republic.
Thomas Jefferson, the most distinguished thinker among them, was a case in point. We hear a lot about “Jeffersonian democracy”; that is what we supposedly have in the USA and what the American empire supposedly aims to install around the world. But if the expression denotes anything like what Jefferson had in mind, it has almost no connection with our own “democracy,” and even less with the political systems we try to impose on others.
Jefferson, a slave owner, envisioned a society quite unlike the one he lorded over and benefited from. For him, an ideal society would be comprised of small, largely self-sufficient, independent producers, each of whom owns his own (seldom her own) land and other means of production.
In an ideal Jeffersonian democracy, surpluses would exchange on markets, but direct producers would not produce formarkets, and neither would their reason for engaging in agricultural production or trade be to maximize their own income and wealth.
For (small-r) republicans, the idea instead is to maximize civic virtue or, in other words, to accord preeminence to public (collective) interests over private interests.
Other mainstays of the republican tradition, also esteemed, in theory if not in practice, by Jefferson were part of our Founders’ repertoire as well; for instance, the idea that the countryside should predominate over cities and towns, and that citizens should eschew citified sophistications, adopting manners and morals in their stead that are uncomplicated and transparent.
This is not our world; it wasn’t even Jefferson’s world. And yet it is practically a tenet of the American civil religion that the Constitution he and other (small-r) republicans wrote is supremely relevant to us now; and that is right and fitting that it govern our politics and our laws.
There are ways to hold a view of this kind that, whatever their shortcomings, are at least not idiotic. Kavanaugh’s way is something else.
In The Protestant Ethic and the Spirit of Capitalism (1904), the great German social theorist Max Weber described a worldly asceticism, grounded in Protestant theology, in which, contrary to the norm in traditional societies and especially in Catholic regions of Europe, people felt duty bound to work for work’s sake – or rather to perform the duties of their earthly “calling” methodically and conscientiously, more or less in the manner of denizens of monastic orders. The Protestant ethic is essentially a monastic ethic, projected onto the workaday world.
The theoretical basis for it comes from Protestant theology, but, because it accorded with the requirements of capitalist development in its time and place, it became free standing once it became established – to such an extent that some of the world’s most formidable proponents of the Protestant ethic were not Protestants at all.
It is much the same with forms of Constitutional jurisprudence, of which Kavanaugh’s “originalism,” the idea that the way to interpret the Constitution is by paying strict attention to its actual language, understanding its words in the way they were understood at the time of the document’s composition, is an extreme example.
What possibly could underlie such an idiotic contention other than the distinctively Protestant notion of Biblical inerrancy, detached from its theological foundations? The theology makes sense, to the degree that it does, because the text it considers sacred is supposed to have been divinely revealed.
Originalists, even extreme ones like Kavanaugh, are not quite idiotic enough to believe that Providence watched over the negotiations of representatives of late eighteenth century American power elites that were held in Philadelphia in 1787 — or at least they are not foolish enough to admit it in public.
Nevertheless, they and others regard the Founders’ words as if they were Holy Writ. Go figure!
Originalism’s most conspicuous Supreme Court defender was Antonin Scalia, but all judicial muckety-mucks, not just the ones Trump picked and Mitch McConnell got through the confirmation process, could say more or less truthfully, that “we are all originalists now.” Kavanaugh is an extreme example, but hardly a unique case.
Scalia was a conservative Catholic of the kind that was distressingly familiar decades ago. How odd that Republicans pandering to evangelical Protestants would rely on old school Catholic conservatives, to enforce the prudery and traditional “family values” they claimed to care so much about in the pre-Trump era. But that is how it is. It is stranger still that Catholics would defend the idea of Constitutional inerrancy, as Protestant-inflected a doctrine as can be.
This is an extreme example of the phenomenon Weber described – where a theological doctrine gives rise to a free standing social fact that flourishes most when cut free from its original rationale.
Indeed, since John Paul Stevens retired from the Court in 2018, there has not been a bona fide Protestant on it. The one partial exception is that other retrograde Trump appointee, Neil Gorsuch. He was born and raised a Catholic, but seems now to have become what is almost the same thing, a High Church Episcopalian.
Otherwise, the Court is full of Roman Catholics – Anthony Kennedy, the man Kavanaugh would replace, Clarence Thomas, Samuel Alito, and Sonia Sotomayor; and Jews – Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan. Kavanaugh is a practicing Catholic too.
In dealing with Kavanaugh and others who think like him, as so many jurisprudes nowadays do, the best, perhaps the only way to defend progress is to appeal to the doctrine of stare decisis(“let the decision stand”), the idea that judges should adhere to principles established by decisions in earlier cases.
How ironic – because stare decisisis an inherently conservative notion, not in the way that “conservative” is used nowadays, as a synonym for “rightwing,” but according to understandings of what conservatism is that do not subject that venerable philosophical tradition to quite so much shame.
As a legal doctrine, with roots in English Common Law, stare decisisis older than the type of political philosophy it exemplifies.
That strain of conservative theory emerged in the early nineteenth century, mainly in England, mainly in reaction to the French Revolution.
Conservatism itself, the idea that tradition matters preeminently, and that changes of any substantial sort therefore ought to be gradual and in keeping with existing understandings and practices, had long been defended, throughout Christendom as a way of reconciling political affairs with the distinctively Christian doctrine of radical human insufficiency, Original Sin.
The idea was that, in consequence of humankind’s Fallen nature, we mere humans are incapable of doing well for ourselves in matters of fundamental concern. In the ancient world, they thought otherwise; they believed in human perfectibility. Christianity changed that.
St. Augustine (354-430) was an originator and defender of this strain of Christian conservatism.
In his view, there are people saved through unmerited grace; they comprise the elect of all nations. They, the supremely fortunate few, the citizens of the City of God, being moved by love of God, have no need of coercive institutions to keep them in line.
But everyone else, the vast majority, does need to be prevented from giving their Fallen nature free rein. The result otherwise would be a devastating war of all against all in which it would be impossible for Providence to fulfill its mission, which is to permit the administration of the Church’s sacraments, without which there is no salvation, to the few who, for no reason beyond God’s mercy, are saved from the fate of other descendants of Adam and Eve.
The problem, though, is that because no one deserves to be saved and because no one can know whether or not he actually is saved, the only way to establish order is to establish institutions that treat everyone as if they are Fallen beings.
In modern, secular versions of this doctrine – the argument Thomas Hobbes (1588-1679) set out in The Leviathan (1651) is an example – individuals contrive a sovereign who, by coercive means, keeps their natures in check, as their interests (not God’s) require. In earlier Christian versions, human beings are deemed incapable of achieving anything like that on their own, without divine aid. Institutions that repress the free expression of Fallen human nature must be divinely imposed.
On this view, in both its theological and secular versions, order is the preeminent political value. But order is always problematic because human beings are incapable of realizing it except by indirection. Whenever it is attained, it is therefore a fragile achievement.
It is therefore perilous to put it at risk by doing anything potentially destabilizing. The more far-reaching changes are, the more destabilizing they can be. Hence, gradualism is advised.
The kind of conservatism stare decisisexemplifies is cut from a different cloth. It is indifferent to Original Sin or functionally equivalent theories of human nature. Its conservatism is based on a view of the nature of governance.
The guiding idea is that governing people is an activity that, by its nature, is not amenable to rational direction because it resembles cooking or carpentry more than, say, mathematics. It is an activity in which a reservoir of accumulated wisdom and good sense, built up over generations and materialized in techniques and traditions, matters more than rational insight or deductive acuity.
From this vantage-point, the French revolutionaries were, as the conservative political philosopher Michael Oakshott (1901-1990) would put it, “rationalists” in politics – intent on building a new world on the ashes of the old, just as Euclid built a new geometry on the basis of rationally accessible first principles, regardless of traditional modes of thought.
For conservatives of this stamp, rationalism in politics, unlike mathematics, is wrong-headed. Wise governance requires adherence to traditional ways, modified gradually and artfully — when, but only when and insofar as, circumstances render change unavoidable.
This is the core idea implicit in the doctrine of stare decisis. By finding precedents, we are less likely to go dangerously wrong than were we to deploy principles in a rationalist spirit.
To the extent that we are able to deal with the future in ways that we have already developed to deal with the past, we will end up no worse off than we already are. Were we instead to rethink everything through from the beginning, we risk going disastrously astray.
The irony is that the tradition established at the founding of the United States was commercial and liberal. This sets American conservatism somewhat apart from European (and even British) conservatisms.
This is why our conservatives are unusually business-friendly. Private enterprise, however, is an unlikely target for conservative concern because it disrupts traditional ways of life. As Marx and Engels observed in The Communist Manifesto, communism causes “all things solid to melt into air.” But where capitalism is the tradition, this is what people like Kavanaugh and others of his ilk would conserve.
Ironically, what saves us from them, to at least some extent, is the more profound purchase on the case against “rationalism” in politics and law that underlies the stare decisis doctrine. We should thank our lucky stars that conservatives in the judicial system, idiotic as their politics may be, are at least nominally and perhaps even sincerely committed to that.
So there we have it: our best defense against Kavanaugh’s conservative idiocy is a legal doctrine that assigns decisive weight to the achievements and, in Kavanaugh’s case especially, the idiocies of the past.