The Unz Review - Mobile
A Collection of Interesting, Important, and Controversial Perspectives Largely Excluded from the American Mainstream Media
 BlogviewAndrew Napolitano Archive
Treating the Court as a Political Branch
🔊 Listen RSS
Email This Page to Someone

 Remember My Information



=>

Bookmark Toggle AllToCAdd to LibraryRemove from Library • BShow CommentNext New CommentNext New ReplyRead More
ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
AgreeDisagreeLOLTroll
These buttons register your public Agreement, Disagreement, Troll, or LOL with the selected comment. They are ONLY available to recent, frequent commenters who have saved their Name+Email using the 'Remember My Information' checkbox, and may also ONLY be used once per hour.
Ignore Commenter Follow Commenter
Search Text Case Sensitive  Exact Words  Include Comments
List of Bookmarks

Harsh winds are blowing on Capitol Hill. The hoped-for and feared clash between Judge Brett M. Kavanaugh and his principal accuser, Dr. Christine Blasey Ford, has come and gone, with all of its calculated and spontaneous outbursts, as well as gut-wrenching emotion.

Dr. Ford subjected herself to the public humiliation of revealing an intimate and horrific event, and she did so with grace and credibility. Judge Kavanaugh subjected himself to absurd questions about his youth, and he offered compelling denials with ferocity and indignation.

At the end of the Ford testimony, it seemed Kavanaugh was at the bottom of a pit. At the end of his testimony, it seemed he had climbed out. His denials of having sexually assaulted Ford 36 years ago lacked the dignity and impartiality that the law requires of federal judges, but his anger and political accusations were understandable for a man who believes he has been falsely accused in such a way as to taint his reputation for the rest of his life.

Whom should we believe?

In this setting, there were few rules and no burdens of proof. Ford surely did not prove that a youthful Kavanaugh assaulted her, and Kavanaugh surely did not disprove it. But the setting was not a court of law. It was a political setting utilizing legal tools — taking oaths to tell the truth, confronting one’s accuser, being subjected to cross-examination — the goal of which was to create a general impression of believability. In that respect, both Ford and Kavanaugh succeeded.

Then a strange series of events happened.

After all interrogations were completed and after all Senate Judiciary Committee members made public statements, the committee voted along party lines, 11 to 10, to recommend sending Kavanaugh’s nomination to the floor of the Senate.

This was only a symbolic vote, because committee approval is not required under Senate rules as a precondition for a full Senate vote. Then the committee voted by consensus to ask the White House to dispatch the FBI to reopen its background investigation of Kavanaugh for seven days.

It is quite simply unprecedented and unheard of for the Senate Judiciary Committee to ask for FBI agents to investigate a nominee after he has testified about the subject of the investigation and after the committee has approved his nomination. If the new FBI investigation is a genuine search for evidence, there should be no time limit imposed. What will the committee do if the FBI finds evidence of unworthiness for office or if it needs more time? Will the committee reopen hearings and take another meaningless vote?

This is a perilous investigation for Judge Kavanaugh because he has already testified under oath about the subjects of the investigation. It would have been fairer to all involved had the FBI been called in before last Thursday’s testimony as was done in the similar Anita Hill/Clarence Thomas episode in 1991.

ORDER IT NOW

In his testimony, Kavanaugh gave the clear impression to the Senate Judiciary Committee that in his youth he was not a heavy drinker who became belligerent or who blacked out. Drinking to excess and becoming belligerent or somnolent after drinking in one’s youth are, of course, not criminal acts unless someone is harmed thereby.

However, lying about any of this under oath can constitute perjury, and giving a false impression about any of it to Congress or to congressional investigators — even if one’s words are literally accurate — can constitute the independent crime of misleading Congress.

If the FBI finds credible evidence to substantiate perjury or misleading Congress by Kavanaugh, his nomination and his current tenure as a federal judge are doomed.

And the FBI will dig. Its agents have legal responsibilities and ethical obligations that transcend instructions given to them by their superiors. If agents come upon evidence of crimes, they are required to pursue the evidence, no matter the time consumed or the political consequences.

Why is this nomination the subject of such rancor?

I have argued countless times that the federal government has grossly exceeded the limitations the Constitution imposes on it. Wherever you are as you read these words, look around you and try to find something in your line of sight that is not regulated by the federal government. It will be nearly impossible. Today the feds regulate not only our personal private behavior but also the states that created the federal government. More than half of each state’s budgetary expenditures are mandated by the feds.

And passing final judgment on all this — ratifying the Wilsonian view of the federal government (the feds may do whatever there is a political will to do, except that which the Constitution expressly prohibits) and eschewing the Madisonian view (the feds may do only what the Constitution expressly authorizes) — is the Supreme Court.

As the reach of federal power has expanded, the power of the Supreme Court to restrain or unleash that reach has expanded. Add to this the life tenure of Supreme Court justices and the mania for re-election of members of Congress and you can recognize the slow transfer of governmental power from the elected branches to the unelected one.

Should the right to life and the extent of the imperial presidency and whether the government is obligated to provide health care be decided by elected representatives or by the Supreme Court? From those who expect the high court to decide these issues — a court now evenly split, 4 to 4, along ideological lines — is it any wonder the Kavanaugh nomination is worth a bitter battle?

The Supreme Court should not be political. It is the anti-democratic branch of government. Its constitutional obligation is not to do the people’s will but to preserve personal liberty from the tyranny of the majority.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Supreme Court 
Hide 12 CommentsLeave a Comment
Commenters to Ignore...to FollowEndorsed Only
Trim Comments?
    []
  1. anonymous[340] • Disclaimer says:

    Boy, will he be torn to bits over this column. Before enjoying that unfold, I wanted to highlight a sentence that distills an aspect of Mr. Napolitano’s prevaricative, creepy writing on behalf of the Establishment: “This is a perilous investigation for Judge Kavanaugh because he has already testified under oath about the subjects of the investigation.”

    First, the back story.

    Any careful reader will have seen over the past eleven months that Mr. Napolitano is especially sycophant for Washington’s priestly (legal) class, exemplified in his St. Mueller. I’ve noted in a couple of his other columns since last November his cheerleading by fearleading. The vile, fawning column published here on February 22 suggested that “American collaborators” with “the Russians [who] ran unchecked through our computer systems and the American marketplaces of ideas” could be charged with crimes.

    Now, notice that this column treats both accuser and accused as credible with respect to the accusation. So the purpose of the further investigation, Mr. Napolitano would have you believe, is to pick back through Judge Kavanaugh’s testimony (but not that of Dr. Ford!) for false statements about drinking beer, etc., the classic perjury trap. As Mr. Napolitano says, “This is a perilous investigation for Judge Kavanaugh because he has already testified under oath about the subjects of the investigation.”

    I still watch this latest confirmation scene as part of the Puppet Show. That people even around this website can be herded into supporting for Supreme Court Justice a man who earned his robe as part of the Cheney administration that subjected us to the so-called “Patriot Act” shows how propagandized we are.

    But pundits like the equally inaptly named “Freedom Watcher’ should exposed for what they are at every opportunity. Does Mr. Napolitano still fool anyone by pinstriping on TV about civil liberties and limited government?

    • Replies: @anonymous
  2. anonymous[340] • Disclaimer says:
    @anonymous

    Sorry for amending, but if you’ve any doubt about what I’ve said, just focus again on these two paragraphs:

    “If the FBI finds credible evidence to substantiate perjury or misleading Congress by Kavanaugh, his nomination and his current tenure as a federal judge are doomed.

    And the FBI will dig. Its agents have legal responsibilities and ethical obligations that transcend instructions given to them by their superiors. If agents come upon evidence of crimes, they are required to pursue the evidence, no matter the time consumed or the political consequences.”

    It’s as if Lavrentiy Beria had written another episode for Efrem Zimbalist, Jr.

    • Replies: @Curmudgeon
  3. The Court is a political branch Andy. Why do you think this conformation battle is divided along strict party lines? The Kavanaugh vs Ford hearing was pure political theater. And character assassination is a staple of partisan politics.

    The Committee asked for the investigation because some senators needed it as cover for a yes vote. It would appear the FBI has given them their fig leaf. We will see what happens next.

  4. “The Supreme Court should not be political”, says Judge Napolitano. But the SCOTUS is political and getting more so. This process began in earnest under FDR. This is when Jews really began to seize political power in America.

    For decades, the adversarial and authoritarian Left has used American courts to legislate from the bench and usurp the will of the people. These sleazy means and motives are why Judge Kavanaugh was smeared and allegations about unwelcome sexual advances (from high school) were dredged up. This is the new normal.

    As ‘diversity’ grows in America, so will discord and division. Surprised? Ha! That’s the plan. The unscheduled and undemocratic transformation of America is now underway.

    • Agree: KenH
  5. @anonymous

    I agree of your assessment of Napolitano. I find it difficult to believe that he was actually a judge.
    Ford’s testimony was anything but credible. She couldn’t remember anything other the it was Kavanaugh and she had one beer.
    As for Kavanaugh’s self description of his drinking, how is it if he did blackout, but didn’t think he did, unacceptable, while Ford’s entire blackout acceptable? Self descriptions/assessments are almost always wrong. Obese people don’t eat too much and alcoholics don’t drink too much. People will err on the side of not making themselves look bad. As a judge, Napolitano should know that.

  6. Art says:

    Its constitutional obligation is not to do the people’s will but to preserve personal liberty from the tyranny of the majority.

    Today without question, America suffers the tyranny of a minority – the Jew moneyed minority. Congress and the administration suffer the coercion of powerful Jews. If the Jew Merrick Garland, had been installed in the Supreme Court – the Jews would have controlled all three branches of our government.

    Napolitano knows this is 100% true – he does nothing about it – instead he gives us platitudes that totally miss the mark of the existential truth of America’s fateful predicament. Shame!

    Napolitano’s claim of being a great constitutionalist is fake – he ignores the first line of the Constitution – the “We the People” part.

    “We the People” do not rule America, an un-American tribal minority does – and he knows it. When will he write about that glaring fact

    Art

  7. anon[180] • Disclaimer says:

    C’mon, you aren’t dumb, are you?

  8. Hey Nappy The court is clearly political. The old lady, her Mexican friend, the Fat Lady and the guy who owns the ice cream business always vote one way and together on hot button issues. The swing vote against Clarence, Sam, Brett and Neil is the Chief. It isn’t new either. Nappy, if you remember your history, Mr. Dooley said that the law didn’t matter, the Supreme Court follows the election returns. Presumably, the old lady leaves next to be replaced by another Trump nominee. Amy? Ted Cruz? And, while we’re guessing, how about Pam Bondi replacing Sessions? I think I prefer Rudy but Bondi is a good political choice with AG experience in FL and she’s a solid conservative plus a favorite of Hannity, good-looking, and a survivor of demo rage. I’m fed up with Sessions. He’s a senator not an executive.

    • Replies: @Prester John
  9. KenH says:

    Judge Avenappy rides again in claiming Christine Blasey Saddles Ford is graceful and credible and that her testimony put Kavanaugh at the bottom of a pit. She cited few specifics about the alleged event and she was coached by her Jewish lawyers on what to say and how to say it to elicit sympathy and maximize the emotional impact. Ford never filed a police report and there are no corroborating witnesses to her story.

    Furthermore, he seems to be insinuating that Kavanaugh made false or misleading statements to the Senate. I don’t think any of us can remember the exact degree we all drank to excess, vomited or acted silly at bars during our college days. His answers should have no bearing on his nomination since that’s not unlawful behavior.

    I wish the judge would simply lay out his case on why he thinks Kavanaugh is not a good nominee from a Constitutional perspective instead of regurgitating leftist talking points to cast aspersions. IMO, Kavanaugh is a good candidate and better than anyone CP-USA would have given us but I do have some reservations with his past ruling in support of the USA Patriot Act among a few other things.

    The left has Avenatti and now the kosher right has Avenappy.

  10. @Jim Sweeney

    Indeed, it is political. What Napolitano is trying to say is that it was not INTENDED to be political. That changed early in the game, however, commencing with Adams v. Jefferson and the election of 1800–only 13 years after the Constitution was signed. We know the rest of the story. So in that regard, yes, it is indeed political. A pity, that.

    • Replies: @jim sweeney
  11. @Prester John

    All courts, state and federal, are political. Judges are appointed by presidents, governors, legislatures or voters and all such are political. Nobody is judged (no pun intended) on his law school grades or Joe Biden would never have been anything. Hussein Obama’s grades are still hidden from view. (Probably so high, that exposure would label him as a nerd which rhymes with what many folks call him.)

    And the framers were well aware of all that as it’s common sense, unavoidable and true. Every judge I’ve been before has some political bents. I try to play to them when I can.

    Obama is arguably the creature of a California divorce court judge who is a well known liberal. That might all be different had the judge in that specific case been other than who it was and history would have been changed, to say the least.

  12. Dr. Ford subjected herself to the public humiliation of revealing an intimate and horrific event

    The human mind is unable to differentiate between a real event and a vividly imagined one.

Current Commenter
says:

Leave a Reply - Comments on articles more than two weeks old will be judged much more strictly on quality and tone


 Remember My InformationWhy?
 Email Replies to my Comment
Submitted comments become the property of The Unz Review and may be republished elsewhere at the sole discretion of the latter
Subscribe to This Comment Thread via RSS Subscribe to All Andrew Napolitano Comments via RSS
PastClassics
Are elite university admissions based on meritocracy and diversity as claimed?
The evidence is clear — but often ignored
What Was John McCain's True Wartime Record in Vietnam?
Hundreds of POWs may have been left to die in Vietnam, abandoned by their government—and our media.