When Law and Politics Become One

Most Americans believe that politics and law are separate entities. This was the position of Aristotle, who treated politics as a study in itself, and Hugo Grotius, the eminent Dutch scholar of the seventeenth century who developed the theory of international law. Not all thinkers have been so careful to distinguish the two subjects. For example, Jean Bodin, the sixteenth-century French philosopher who developed the first comprehensive doctrine of sovereignty, intermingled the two. Americans comfortably in the Aristotle-Grotius camp should think twice about tuning in to the hearings for Supreme Court nominee Brett Kavanaugh, which begin on September 4. The hearings will have little to do with whether Kavanaugh is qualified to sit on the High Court. He clearly is. Kavanaugh is a Yale Law School graduate, clerked on two courts of appeals and the Supreme Court, served in the White House, and has been a judge on the U.S. Court of Appeals for the D.C. Circuit since 2006.

The hearings will be no great search for Kavanaugh's judicial philosophy. He's already made that clear on the evening he received the nomination: "My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent." What the hearings will be is political theater as leftist senators pepper Kavanaugh with questions in the hopes that he has a mental lapse so they can embarrass him and persuade their more moderate colleagues to vote against him. Why such gamesmanship? It all goes back to Kavanaugh's judicial philosophy. The modern left does not want law and politics to be separate. At one time, Democrats sought change through innovative legislative programs such as FDR's New Deal. Now they prefer to promote political and constitutional change through the courts. They have learned to do this by drawing the wrong lessons from a historic Supreme Court case. In 1954, a unanimous Supreme Court rightly held in Brown v. Board of Education that "segregation of children in public schools solely on the basis of race" is against the law. Brown was an extraordinary case that sought to tackle the inimitable evils of state-sponsored segregation. Unfortunately, the left does not view Brown in this context, but instead is inspired to seek a judicial remedy in the first instance rather than attempting to persuade fellow citizens of the merit of a particular cause. In the words of Harvard's Mary Ann Glendon, after Brown, progressives began to "imagine that wise judges in black robes could cure social ills." Professor Glendon notes that perhaps even more dangerously, Brown has motivated "many unwise judges down the line to begin to believe that they had the magic touch." Gerald Rosenberg, a professor at the University of Chicago School of Law, astutely complains that post-Brown, various causes were "hijacked by a group of elite, well-educated and comparatively wealthy lawyers who uncritically believed that rights trump politics and that successful arguing before judges is equivalent to building and sustaining political movements." Political movements build the democratic muscle of the citizenry, whereas litigation sends the message that "important" matters should he left to the elites. The left seeks to excoriate Kavanaugh because he does not claim the "magic touch," and he prefers that the people and their representatives address society's ills. In this manner, he is much like the late Antonin Scalia. "This practice of constitutional revision by an unelected committee of nine," Scalia wrote, "always accompanied ... by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves." For the last 60-plus years, the merger of law and politics has slowly killed the spirit of self-government. Today, issues that were once decided in state and local assemblies are controlled by the judges. The Supreme Court defines marriage, draws legislative districts, and micromanages state criminal law. With law and politics blended, control of the High Court is a greater prize than majorities in Congress or the occupancy of 1600 Pennsylvania Avenue, hence the left's desperate measures to keep a qualified jurist off the Supreme Court. Kavanaugh's hearings will be a lesson on why law and politics should be separated and a reminder of just how much our country needs an infusion of Aristotelian wisdom. William J. Watkins, Jr. is a research fellow at the Independent Institute and author of Crossroads for Liberty: Recovering the Anti-Federalist Values of America's First Constitution.