For what it’s worth here’s my two cents on the Kavanaugh debate.
The late Supreme Court Justice Scalia warned, almost prophetically, that as the Court becomes more and more an activist court as a result of the living breathing Constitution doctrine the people will find a way to make their voice heard. That the judiciary, which was designed to be the most insulated from politics, will increasingly become politicized –especially during appointments.
We know that getting a Justice in that is one of ‘ours’ can have a very lasting effect on politics. It’s not the design of the judiciary to be a highly political body, but when you make the Court into a super legislature with the power to determine, at any given moment, what the Constitution means, subjectively according to societies’ need at the moment, you necessarily make appointments a very controversial event.
We all know what’s at stake. Abortion, same sex marriage, the living breathing Constitution doctrine, etc.
The ugly politics of the recent Kavanaugh appointment is a result of an activist court. And those who advocate for an activist court know that the very heart of their jurisprudence is at stake.
With that in mind we proceed to the very political craziness we have seen with Kavanaugh, and we shouldn’t be surprised about it.
Personally, I think there may be other practical issues, such as standards of evidence for character hearings in the appointment process.
But the real concern, on an even deeper level, is the effect of post modern relativism on politics. The #believesurvivors movement as applied to Kavanaugh partly comes from the idea that belief and personal emotions or experiences are a substitute for rationality as the means to discover truth in our post-modern culture.
If you believe it then it’s true.
And it pulls at our heart strings to want to respect what people believe. But what if what people believe isn’t actually objectively true? Is it still compassion to credit them with truth when there is no objective reality to that “truth”? If there is no evidence is it the right thing to keep believing them? If truth is relative and subjective then believing them may be the indignantly “right” thing to do for you. But in doing so you expect others to agree with you and are angry when they don’t. But you have no right to be angry. Truth is relative, and you borrow from the concept of objectivity when you hold people to your standard of believing for the sake of believing.
You say again then that truth isn’t objective in the first place. But can government, especially the judicial branch, function without some objective way to find what’s true? Would that actually work? Does justice cease as a meaningless idea dependant on the definition we happened to attached to it? Should we build our criminal and civil court systems on the idea of feelings and belief, and discard all rules of evidence as worthless?
That, sir and madam, would be anarchy.
And anarchy is exactly what we are starting to see in our American politics.