How the Kavanaugh Nomination Reveals a Deep Challenge to Our Democracy

By David French

Thursday, July 12, 2018

Yesterday I wrote a piece rejecting the absurd alarmism surrounding Donald Trump’s nomination of Brett Kavanaugh to the Supreme Court. No one will “die” if Kavanaugh is confirmed. His judicial philosophy doesn’t represent an “emergency” for the “safety” or “freedom” of the American people. If anything, his jurisprudence will largely lead to greater protections for individual liberty against state power.

But today? Today, I’m going to reverse course just a bit. I do think that Brett Kavanaugh’s nomination does help reveal a terrible challenge to American democracy, but it’s not a crisis of personal safety or individual liberty. The various versions of the “Bork’s America” speech for 2018 that are circulating online are overblown and ridiculous. No, the challenge is structural, and a structural challenge can be just as dangerous to the health of a constitutional republic as cultural or political division over any given set of issues or values.

Kavanaugh’s nomination — indeed, every modern Supreme Court nomination — reminds us that the most powerful branches of the federal government are the most removed from the democratic process. The vision of the Founders has been subverted. Your vote matters less every year.

Let’s quickly rank — based on contemporary political power alone — the three branches of American government. First, by far, is the executive branch. Together with its executive agencies, the presidency now reaches into every corner of American life. With the stroke of a pen, he can alter the substantive law governing America’s schools, hospitals, workplaces, and courtrooms. Under current legal doctrines, the president enjoys immense regulatory rule-making power, and courts defer to those regulatory judgments.

Moreover, generations of bipartisan capitulation have all but assured that the single most consequential decision a government can make — the decision to go to war — is in the president’s hands alone.

As a result, there is now no such thing as true “gridlock” in American government. No matter who holds the House or Senate, the president can make law at an astonishing pace. Look at the number of “economically significant” regulations issued under the last three presidents:

And if you think the Trump administration is “dismantling the administrative state,” think again. It’s issuing slightly fewer regulations, but the numbers are still astounding:

 

Next comes the judiciary, the only branch with a recent and active record of trumping the executive branch. In the last 50 years, it’s had immensely more influence over American life than Congress. It has removed the ultimate decision of life and death — the debate over abortion — from the democratic process. For good and ill it has helped change not just American law, but American culture. Any given federal district-court judge exercises more real power and authority than your average senator. Nationwide injunctions can, for a time, even allow the lowest level of federal judge to override the full power of the presidency.

By contrast, Congress is an afterthought. It has formally delegated an enormous amount of power to the executive branch. (Why are debates about immigration, national security, and trade so focused on the presidency? Because Congress has gifted its power to the president.) Moreover, as the presidency’s power has grown, individual congressmen have become virtual White House staff, measuring their performance solely based on their ability to advance the president’s agenda, and midterm elections have come to be treated mainly as referendums on the performance of the one person who truly matters — the person in the Oval Office.

This is exactly and precisely wrong. This is not what the Founders intended. And it’s inherently destabilizing and polarizing. Consider this: Both the executive and the judicial branches operate under essentially a winner-takes-all format. Once the president wins his election, he doesn’t need the consent of Congress to craft regulations, and his authority to craft regulations is immense. He effectively doesn’t need the consent of Congress to launch a war.

Similarly, at the end of a Supreme Court case — whether the vote is 9–0 or 5–4 — there is a winner and a loser. The courts are where litigants go when compromise has failed. There is, by design, little democratic recourse for reversing a Supreme Court decision, and losers often lose for a generation or more — even when their cause is just (think of Dred Scott, Plessy, or Roe).

To put it plainly, this means you — the American citizen — get one vote every four years (one out of 130 million) to decisively influence both of the most powerful branches of government. Your congressional vote, the one you cast every two years — the one that matters most to the outcome of an election — has become a vote for a glorified pundit. He or she will issue press releases, argue with other members on cable news, and pledge to do the bidding of (or oppose) the man with the true power.

You vote and win, and it’s ecstasy — the kind eyes-shining exuberance we saw in Chicago in 2008 when Barack Obama promised hope and change, or the shocked shouts of joy at the Trump campaign’s party late on election night in 2016.  You vote and lose, and it’s agony. And with the executive and judiciary steadily gaining authority, while each presidential election isn’t necessarily “the most important of our lifetime,” each election puts in place arguably the most powerful president in American history.

The Founders didn’t intend to create executive or judicial supremacy. They didn’t even intend to create “co-equal” branches of government. They intended legislative supremacy. The legislature can remove the executive. The legislature can pass laws over the president’s objection. The legislature can remove any federal judge or justice from the Supreme Court. It can sharply limit the jurisdiction of the courts. Its latent constitutional authority is breathtaking in its scope.

But it can attain its intended dominance only through bipartisan compromise. The supermajorities necessary to trump the executive, for example, can’t exist without either extraordinary emergencies, extraordinary foresight, or a necessary deescalation in our political rhetoric and a transformation of political incentives.

That’s one reason, for example, that “people will die” or “Flight 93” arguments are ultimately so destructive to our body politic. What rational person would compromise with an opposing legislative force that wants to kill you or end America?

Legislative supremacy depends on debate and compromise. It depends on forging actual relationships. And it puts legislators up for a vote every two years — making public accountability an omnipresent force in a House member’s life. Executive and judicial supremacy, by contrast, incentivize mass tribal mobilization followed by the exercise of raw power to deliver on the promises that brought tens of millions to the polls. The challenge to American democracy — even to American unity — is obvious.

The primal scream you now hear from the left — the panicked reaction to the nomination of Brett Kavanaugh and the possible loss of one branch of government for a generation — is exactly what you’d hear from the right if the roles were reversed. Indeed, it was the very panic that arguably put Donald Trump in office.

Even if the stakes of any given judicial-nomination battle aren’t as high as the rhetoric suggests, it is a matter of immense gravity that the most powerful branches of our government are also the most removed from the popular will. The bottom line is clear: We need to restore the proper balance, or our diminished democracy will strain the bonds of our increasingly diverse and fractious constitutional republic.