The Kavanaugh Confirmation Will Be Truly Dangerous

Thomas Jefferson justified American independence from the British Crown by invoking the concept that no government can be legitimate without the consent of the people it governs.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Occasionally, we hear radical conservatives refer to this clause in the Declaration of Independence as well as another quote from Jefferson, from a letter he wrote from France in 1787 to his friend William Smith: “The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is its natural manure.” The idea is that violent revolution is justified if the government becomes oppressive.

The 18th-century Scottish philosopher David Hume noted that most governments of his age seemed quite capable of governing without anything approximating true consent so long as they didn’t go too far.  In recents years, we’ve seen some examples of what can happen to a despotic government when they don’t show enough restraint. Leaders in Egypt, Tunisia and Yemen have been toppled from within, in Libya from without, and in Syria all civil order has dissolved entirely in an effort to preserve an illegitimate regime.

In general, the more oppressive the government, the more force is required to maintain order, and in the former communist world we saw that totalitarianism was a necessary component of the system. Some despotic societies can provide a decent life (for a time) to their societies, but this is only on the surface and they ultimately invite dissent and resistance—and ultimately, violence and terrorism.

The best assurance of a good society is a people governed by a truly self-correcting system, where the people not only have the nominal right to change their leadership but a true and rational belief that they have an actual ability to do so. Representative government is our solution, and it absolutely depends on the people’s willingness to believe that power can be challenged, and challenged effectively.

It’s vitally important that people perceive elections to be credible, but it’s also necessary that they accept the results even when their preferred party or candidates lose. This is a requirement for maintaining civil order. Without this perception, there is a breakdown in consent. People don’t see any reason to obey laws, to respect the police, to accept the rulings of judges, or to suffer any inconvenience or political setback without acting out.

Our country is entering a danger zone on so many fronts. We’ve already suffered through an election decided by a partisan Supreme Court. We’ve endured another election that was heavily impacted by foreign interference. Twice, the popular vote winner has lost a presidential election. Congress has perfected the art of using computer technology to draw districts that protect incumbents—they now essentially choose their voters instead of being chosen by them. Judicial rulings have opened the floodgates of dark money, making it impossible to regulate how campaigns are financed or to prevent powerful interest groups from swamping the power of people-powered movements. More and more, the people on the margins of society or at the most vulnerable stages of life are seeing their right to vote challenged, and their ability to vote complicated.

Now we see the Senate malfunctioning so that it no longer serves its primary purpose of cooling the passions of the House and forcing compromise on a divided nation. Instead, the rules forcing consensus are being obliterated. A candidate like Brett Kavanaugh would never have been nominated if we still had a filibuster for nominations, and he surely would not be confirmed if even the slightest requirement for bipartisan consensus was required. Most people did not vote for Donald Trump and do not want the kind of Court he and Mitch McConnell are going to give us. But, even more than that, most people cannot fathom how a man like Kavanaugh can be rammed through to confirmation in a process like this. 

I’m not making a personal threat, but a simple prediction, that we entering into a period of social unrest, and the Kavanaugh confirmation is akin to throwing a Molotov cocktail on an already smoldering fire.

We need to be moving in the opposite direction, toward more voter participation, more vulnerable incumbents, more citizen power versus corporate interests, more consensus driven rules, toward more widely acceptable Supreme Court Justices.

But we’re not headed that way. Kavanaugh will move us in the wrong direction on every single one of these issues, both because of how he will rule on cases before the Court and because of how he was pushed through.

There is nothing approximating consent of the people for this, and that is a recipe for a breakdown of our society.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.