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Breaking News Alert This Week In Lawfare Land: 'Deadly Force'

‘The System’s Not Working’ Is Liberal Speak For ‘We’re Not Getting What We Want’


CNN released a new poll this week that alleges only 38 percent of Americans support the confirmation of Judge Brett Kavanaugh to the Supreme Court, while 39 percent do not. It was the lowest net approval of any Supreme Court nominee since Harriet Miers. “Even” Robert Bork was +3 in the poll at the time of his confirmation hearing, a helpful reporter pointed out.

The news induced Vox’s Ezra Klein to argue that a “lifetime appointment for a Supreme Court Justice who a plurality oppose at the time of his appointment, and who was nominated by a president and confirmed by a political party that were also unpopular, is quite a way for a system to work.” His sentiment was echoed across liberal punditry.

Setting aside the fact that the court is, for good reason, deliberately undemocratic, one wonders how our process can survive when the alleged moderates of a major political party are persistently making — in the most authentic sense — anti-constitutional arguments? These folks aren’t merely saying we need majoritarianism, which already chafes against one of the foundational ideas of American governance, but that the very system we function under is defective.

And why? Because they haven’t gotten their way.

What positive poll-differential would make it acceptable for elected Republicans, who run both the White House and the Senate, to move ahead with a Supreme Court confirmation of a D.C. Circuit Court judge that has a long and exemplary record? One point up? Five points? And which national poll should elected officials rely on when making this determination for their constituents? I mean, Kavanaugh is down by a single point in a CNN poll in a nation where more than half the people can’t even name a single Supreme Court justice.

Never mind either that 2016 was the most SCOTUS-centric election we’ve had in modern times. The GOP’s presidential candidate provided a list of names then promised to nominate those people if he became president. Seems pretty transparent to me. Klein’s standard incentivizes the kind of “turbulency and weakness of unruly passions” the Founders warned us about — trends that have already taken far too much hold in American life.

Hey, if your contention is that a SCOTUS nominee’s legitimacy is predicated on his immediate popularity rather his commitment to the Constitution, it makes sense to attack his popularity using dishonest smear campaigns for short-term partisan gain. We’re not talking ideological attacks or concerns about precedent or Roe v. Wade or temperament.

We’re not only talking about activists on social media, but also about senators on the Judiciary Committee like Kamala Harris and Cory Booker, and former presidential candidates like Hillary Clinton, who shamelessly repeated the lie that Kavanaugh referred to birth-control pills as “abortion-inducing drugs” to millions of her followers after it had already been thoroughly debunked, even by left-leaning fact checkers.

Democrats are increasingly comfortable arguing against the “undemocratic” Constitution, seeing the system as the opposition. We see it most notably with opposition to the Electoral College, but centralizing federal power has long been a goal of the Left. If you support big government, it’s useful, but it’s also an expedient political argument to offer a civic-challenged electorate that recoils at the word “undemocratic.”

Many liberals don’t believe in proportional representation at all because they’d like to see New York and California dictating how people in Idaho and Arizona live their lives. That’s no secret. Right now, though, the idea that a senator from Utah should vote against a Supreme Court nominee because a bunch of people in New York don’t like him is absurd.

Although I don’t recall any serious person arguing the system was broken when the plurality-governing Bill Clinton — who was also the focus of criminal investigations — was moving forward on nominating judges, a curious person might wonder: Why just the courts? Why don’t we have a national referendum every time CNN polling fails to correspond with the composition and views of the elected Congress and president?

Democrats, weirdly, did not seem paralyzed by bad poll numbers when they were unilaterally pushing through Obamacare, a massive overhaul of the entire health-care system that affected every American. The bill was underwater, but still championed by Klein and a Democratic Party that would soon be thrown out of leadership in successive wave elections. Then again, that’s how you punish politicians for engaging in votes you disagree with. You don’t demand that they abandon their constitutional duty.

Of course, many these positions are just situational — which, in many ways, makes them even more unprincipled.