BARTH: Storming the last redoubt of constitutionalism

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HERE'S my number one takeaway on the controversial nomination of Brett Kavanaugh to the United States Supreme Court.

Almost everybody involved ought to be ashamed.

Remember, at the heart of this process is the court itself. It is the highest tribunal in the land, expected to be the guarantor of liberty and justice for all Americans no matter their economic, political, social or ethnic status. It is expected to decide matters without regard to politics or the passions of the day.

The Founders had few illusions about the two political branches of government, and expected them to be driven by politics. The Supreme Court, with the authority to interpret the actions of the political branches, is designed to provide the most powerful check-and-balance against partisanship, a guardrail to contain excess and extremism.

KAVANAUGH was nominated by a Republican, President Trump, who made the choice because the nominee's record was in accord with the conservative party's principles and desired direction for the court.

Nothing wrong with that. Nominations to the Supreme Court have been made on that basis since the country's birth. Presidents have never been likely to nominate individuals unless they are believed to be in step with the chief executive's views. Sometimes, there are surprises. Justices answer to no one after being seated for a lifetime appointment. So-called liberals have turned out to be more conservative than believed, and vice versa. But that's the exception.

For most of the country's history, though, politicians have respected the Senate's advise-and-consent role with a certain deference to presidential authority under the Constitution. If a nominee was clean and qualified, significant bipartisan support was relatively common. That practice not only preserved civility, but indicated both Democrats and Republicans recognized the potential for great damage to the country if the Supreme Court was sullied by cheap partisan politics.

NOW, we can bury the notion of a higher plane for the Supreme Court in the graveyard of political excess.

For those with short memories, who want to blame Senate Democrats for all the bad behavior, try taking a longer perspective.

Both parties, particularly since the ill-fated nomination of Robert Bork, increasingly have approached Supreme Court nominations as just one more political battlefield. The past couple of years takes it to a new low, with both parties acting in shameful ways.

Conservative Justice Antonin Scalia died when President Obama had nearly a year left in office. The Constitution gives the chief executive the right to nominate the next justice, with the advice and consent of the Senate. But Republican Senate Majority Leader Mitch McConnell immediately said Obama would not be allowed to fill the vacancy during his last year as president. Subsequently, Obama did what he had a right to do and nominated Judge Merrick Garland, who already had been confirmed as a federal judge earlier with praise from both sides of the aisle. McConnell held firm to his word. The Garland nomination was ignored. No hearing. No vote.

That was not just a snub to Obama and Garland. It was a snub to the Constitution - especially when McConnell, asked if he would enforce the same approach if a Republican was in the White House, would not answer.

DEMOCRATS were destined to turn Brett Kavanaugh into their instrument of payback. When Trump nominated Neil Gorsuch to fill Scalia's vacant seat, the partisan rancor was less severe because it was one conservative replacing another. Kavanaugh was nominated to replace a moderate, a swing vote, thus becoming the fifth solid conservative on the nine-member court.

A scorched-earth Democrat strategy may have been predictable, but that doesn't make it acceptable.

Likewise, Republican determination to push Kavanaugh through no matter what makes a mockery of fair play and justice. It was obvious the right really had no interest in finding out with certainty if Kavanaugh had character issues as a younger man.

Make no mistake. For both sides this is about nothing but power. They can talk all they want about the Constitution, about fair treatment, about judicial independence, or any other high-minded principle. Ignore that. Both sides want only power and control. What's best for the people runs a poor second to what's best for the party faithful.

In that climate the United States stands at a precipice. The people's government has become the parties' government, Republican and Democrat. The entire Supreme Court debacle - from Garland to Kavanaugh - should be all the proof needed.

IT WOULD be cowardly to end this piece without disclosing if I believe Kavanaugh or his accusers. So here goes.

I know this sounds nuts, but I believe both Judge Brett Kavanaugh and Dr. Christine Blasey Ford. Both exhibited considerable credibility with their testimony. I believe Ford was victimized and that she's sure Kavanaugh was the attacker. I also believe Kavanaugh is just as adamant that it wasn't him. Absent convincing evidence one way or the other, 35 years later, it is virtually impossible to make a sound judgment.

Still, if I had a vote, I would not confirm Kavanaugh. That has nothing to do with youthful beer drinking or whether he did or did not act inappropriately toward females.

For me, Kavanaugh disqualified himself in his testimony when he took a nakedly partisan turn, angrily ripping Democrats and the left and even dipping into conspiracy theories with a reference to "revenge of the Clintons." I don't fault the guy at all for passionately defending his character. But when he took a snarling high dive over an ideological cliff, Kavanaugh showed America who he really is - a partisan.

As a conservative with a libertarian bent, I might find myself agreeing with Kavanaugh on many things. If I wind up in court, though, I want judges who are fair referees, not partisans of either stripe. The political class - both sides - has betrayed the country. Again.

William Barth is the Editor of the Beloit Daily News.

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