Since the beginning of the Kavanaugh confirmation hearings, a common refrain among a growing number of Americans has been, “How did we get here?” One possible explanation begins with a tale of two women, and how their actions nearly half a century ago, catalyzed the Democrat Party of today.
The first woman, Martha Wright Griffiths, was a lawyer and accomplished public servant, who served in Congress from 1954 to 1974. The Congresswoman was a strong advocate for women’s rights.
In 1971, Griffiths introduced, and the House passed, the Equal Rights Amendment (ERA), with the required 2/3rds majority. The Senate followed suit five months later, and the ERA went to the states for ratification. Only a year after congressional approval, the ERA had 30 of the 38 approvals required to become part of the Constitution.
This rapid consideration of the ERA was consistent with the adoption periods of all amendments to the Constitution in the 19th and 20th centuries, which averaged 15 months. Indeed, the 20th century had been a “golden age” of Progressive activism, channeled through amendments process in Article V. During this period, the national income tax was approved, women were finally given the vote, Senate selection changed to direct elections, poll taxes were revoked, and the voting age was lowered to 18. Despite a string of victory of decades long victories, however, the ERA approval process essentially ended this path for Progressives as an avenue for social change.
After 1973, the pace of state approvals for the ERA dropped dramatically. While other states were approving the amendment, four states rescinded their approval. By the 1979 approval deadline, ERA was six states short. Though Congress extended the consideration period by three years, no additional states signed up, and ERA died, 10 years after its approval by Congress.
That sea change in opinion was largely driven by a growing, grass-roots conservative counter-culture, that arose in response to more than decades of sustained liberal governance. The movement coupled social conservatives, fiscal conservatives and national security hawks into a powerful coalition, fueling the candidacy of Ronald Reagan in 1980. Reagan’s victory that year created a political realignment that shattered the New Deal/Great Society coalition, which had held sway for half a century.
With the nation now having a choice, and not simply an echo, between the two political parties, the opportunity to garner the unanimity required to pass a constitutional amendment became remote. Despite many attempts, Congress has not approved an amendment to send to the states since ERA, almost half a century ago.
In retrospect, thee ERA failure the new political alignment that defeated it, ended the preferred Progressive method to implement their agenda.
The second woman is Norma McCorvey. In 1969, the 21 year old Texan became pregnant and sought an abortion, which was not available under Texas law at the time. Ms. McCorvey became “Jane Roe,” the plaintiff in one of the most significant Supreme Court cases in American history, Roe vs. Wade.
The landmark ruling, decided by a vote of 7-2 in 1973 effectively invented a blanket right to abortion, found nowhere in the text of the Constitution, nor in any of the precedents of the Court’s history. In one stroke, SCOTUS bypassed the judgement and consideration of Congress and 50 state legislatures, disenfranchising more than 200 million Americans on a profound social issue, through a breathtaking display of judicial fiat.
There was not a congressional majority that could have passed a bill embodying Roe’s principles in 1973. There has not been a congressional majority over the last 45 years capable of making Roe into law, let alone passing an abortion amendment to the Constitution that could pass Congress with the required majorities, let alone the 38 states.
The plain fact is that Roe was among the most anti-democratic acts in American history, and it is the reason why abortion in America – unlike say, abortion rights in Europe, where parliaments passed laws where legislators were accountable to voters – remains a fixture in the culture wars.
However, despite the collateral damage to democracy, Roe achieved in one stroke what not even the most comprehensive, grass-roots campaign for an abortion law or abortion amendment could. SCOTUS could implement the Progressive agenda through fiat.
With the failure of the ERA Progressives realized this immediately.
Not only could a liberal SCOTUS protect Roe, but the Court became the fastest path to realize their larger agenda in a Court. Judges that viewed the Constitution as a “living document;” where clauses, written over a century ago, opened new vistas of interpretation would allow for robust adjustments to modern, Leftist sensibilities, without the need for legislative approval or popular consent.
Investing in the Court also made practical sense Historical political control and Senate rules worked in the Progressives favor to limit conservative encroachment on SCOTUS. When Roe was decided, the Senate had been controlled by Democrats for 36 of the past 40 years. That history, combined with the Senate Cloture rule, requiring 60 votes to proceed with debate, provided the infrastructure to modulate potential conservative nominees to SCOTUS.
Nixon and Bush 41 were both restrained by this.
In 1969-70, the Democrats in the Senate, with 58 seats, killed Nixon’s first two nominees for SCOTUS as insufficiently moderate. In 1970 they approved Harry Blackmun, who, in dark irony, was the author of Roe, three years later.
Similarly, in 1990, George H.W. Bush settled on the “stealth” conservative, David Souter, who won confirmation by an overwhelming margin, but almost immediately retreated to the center-left of the Court, where he became a reliable vote for Progressives.
However, when Republican presidents chose genuine conservatives, posing a real threat to liberal dominance of the Court, Democrats were prepared to defeat nomination by any means necessary.
If gross distortion of the nominee’s record wasn’t sufficient, as in the case of Robert Bork in 1987, character assassination would suffice, as in the case of Clarence Thomas in 1991. In addition to serving immediate political imperatives, Democrat attacks were also a warning to potential future nominees, that there was nothing that Progressives would not do to protect their influence on the Court.
It is worth pointing out that in the post-Roe period, Republicans adhered to a completely different set of principles with regard to Supreme Court confirmations.
While the GOP goal was always to create a conservative majority on the Court, the Republicans maintained the time-honored principle that presidential elections are national referendums, and that subject to adequate qualification, presidents were entitled to their own Court picks. For the GOP, the SCOTUS “Advise and Consent” role was not first an ideological imperative, but an institutional responsibility, greater than party.
Even after Democrat antics with Bork and Thomas, GOP Senators overwhelmingly supported Clinton’s two nominees for SCOTUS, Ruth Bader Ginsburg and Stephen Breyer, not because they agreed with their judicial philosophy, but because they were qualified to serve.
In the more partisan atmosphere of the Obama administration, Republicans also crossed the aisle to vote for Sonya Sotomayor and Elena Kagan. Crucially, the GOP never engaged in personal attacks, defamation, or outright lies to derail Democrat nominees, and that specifically includes Merrick Garland in 2016, where the GOP simply followed the precedent called for by then Senator Joe Biden, the “Biden Rule.”
It is the supreme irony of today’s SCOTUS crisis, that it was the Democrats themselves, through a mix of arrogance, opportunism and colossal hubris, which ended their institutional confirmation advantage for SCOTUS.
Rule 22 of the Senate states that 60 members much vote affirmatively to end debate on legislation or nominees (“Cloture”), to allow the Senate to move to a vote requiring only a simple majority. Republicans have not held 60 Senate seats in nearly a century, meaning that any conservative nomination for SCOTUS would require bipartisan support. In practical terms, so long as Democrats could keep their caucus united, no GOP nominee for SCOTUS could be approved on a party-line vote.
That all ended with Harry Reid. In 2013, Reid broke the rules of the Senate (creating a precedent) and ended Cloture for Executive branch nominees and non-SCOTUS judicial nominees. The action, which provoked ferocious outrage by Republicans, allowed Reid and his majority to quickly vote on a backlog of Obama nominations, through a simple majority vote.
While Reid’s move was hailed at the time as the demonstration of decisive leadership, and provided a short-term political victory for Obama and the Democrats, it had one glaring flaw; it was only useful as long as Democrats maintained a Senate majority, and the presidency remained in Democrat hands.
Election night 2016 was a catastrophic blow to the Progressive agenda for America. Instead of Hillary Clinton and an immediate 5-4 liberal majority on the Court, Democrats got Trump and McConnell, and the sudden realization that there was no way to stop the most conservative nominees from joining the Court through a simply majority vote.
It began with Neil Gorsuch. Following Reid’s precedent, Mitch McConnell ended Cloture for SCOTUS nominees, allowing Gorsuch to be confirmed by a simply majority vote. Though a philosophical nightmare for Progressives, Gorsuch replaced Scalia, which in SCOTUS math was 1 for 1. However, when Anthony Kennedy, the swing vote on the Court since the 1980s, retired, everything changed. And suddenly, everything was on the line.
An authentic conservative replacing Kennedy would create a 5-4 conservative majority. Worse, with Ruth Bader Ginsburg and Stephen Breyer were 85 and 80 respectively, there was at least the theoretical possibility that President Trump could lock a 6-3 or 7-2 conservative majority for 20 years or more in only one term.
With Democrat elected officials decimated at every level of government across the country during the Obama years, the potential generational loss of a Progressive check on SCOTUS became intolerable for the professional Left.
Trump’s nominee, whomever it was, would have to be destroyed by any means necessary to prevent them from joining the Court. That has played out over the last month, and particularly over the past two weeks.
What is crucial to remember here is that the heinous attacks on Kavanaugh are not the result of any particular allegation against Kavanaugh. In the best traditions of the Soviet show trials of the 1930s, the allegations here really don’t matter. It is the underlying political and ideological goal that matters.
During the Vietnam War, an American soldier was said to have remarked, “We had to destroy the village in order to save it.” Today, Democrats are destroying citizens and institutions to save their ideology. It is among the most historical undignified and repugnant behavior yet demonstrated by American legislators.
Democrat prevarication have cast Kavanaugh’s confirmation in doubt. But win or lose, what has been done cannot be undone. The Democrats have set a new standard for SCOTUS confirmations.
Payback is going to be a bitch.