What happens in a system of checks and balances when there are no checks? The system goes off balance. To those who depend on the system, that can be an annoyance — “You didn’t warn me to slow down and now I’ve got a speeding ticket!”
Or, if as happened last week, a temperamentally unsuited, clearly partisan judge, credibly accused of sexual assault and displaying a willingness to lie under oath, nominated by a president unfit for the office in too many ways to list, is confirmed to the U.S. Supreme Court by two votes by a United States Senate half of whose members chose to ignore the disqualifying evidence and voted to solidly political power rather than to preserve the integrity of the court, it can be a threat to the very existence of that system. And to the people who have placed their trust in it.
The confirmation of Brett Kavanaugh to the Supreme Court was as ugly a demonstration of an out-of-balance system as has been witnessed by most Americans in their lifetimes. The fear of many, of course, is that Kavanaugh will now tilt the balance of the court to solidly conservative, with no “swing” vote, and affect many areas of Americans’ life for decades to come. That is certainly possible, but it remains to be seen. What’s more, history has shown that justices do not always vote as predicted. If not Kavanaugh, someone else may defy the conventional political wisdom on any given issue.
But that’s the court’s problem. Do the justices want to maintain a sense of credibility and non-partisan deliberation to give their rulings legitimacy and broad acceptance by the American people, or do they want to behave like the U.S. Senate?
In truth, the immediate and serious threat to the U.S. system of checks and balances created by the writers of the Constitution is not an out-of-balance-but-unpredictable Supreme Court, but an utterly predictable U.S. Senate, which has been off balance since Donald Trump moved into the White House. Actually, it started tipping in February of 2016 when Justice Antonin Scalia died and Senate Majority leader Mitch McConnell, a Republican, declared the Senate would not even consider a nominee put forth by outgoing President Barack Obama, a Democrat.
McConnell made good on his word. A well-respected, moderate judge nominated by Obama was never considered. Trump, who has no political philosophy, hijacked the Republican Party, winning its nomination and the presidency. Our checks and balances have been sorely tested ever since.
Stuck with Trump, McConnell has used his position and Trump’s hold on a vocal, angry power base in the Republican Party to make fear, anger, lies and bullying the new standard operating procedure in the Senate, will of the people be damned. The Kavanaugh hearing and the sham FBI “investigation” are perfect examples of that.
Unfazed and arrogant, McConnell says the furor over Kavanaugh will “blow over.” It will be business as usual in the Senate. Of course, a majority of Americans, who don’t share McConnell’s or Trump’s views, have the ultimate check to restore balance — their vote. It has seldom been more important.