Over the past few weeks, we have watched as a handful of United States senators have made a mockery of the confirmation process for a nominee to the United States Supreme Court. This group has argued that their quest to derail the appointment of Judge Brett Kavanaugh is both noble and honorable, and intended to save America from this judicial radical.
Apparently, in the minds of these senators, if a Supreme Court nominee believes in interpreting the constitution and laws of the United States, instead of rewriting the constitution and laws, then that person should be considered unqualified for a lifetime appointment on the U.S. Supreme Court.
So, what makes Judge Kavanaugh unfit to serve on the Court? Is it because he might someday have to participate in a case along with the eight other justices where the justices might have to consider the words of Justice Blackman in Roe v. Wade when it was written, “For the stage subsequent to viability, the State in promoting its interest in the potentiality of human lifemay, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Undoubtedly, when Justice Blackman wrote those words there was little thought that advances in medical technology would change the very definition of viability. So, who should we label as a the judicial radical, Justice Blackman, or Judge Kavanaugh?
As each of us look back at the events of the past few weeks, take a moment to consider a possible unintended consequence of this unprecedented attack on Judge Kavanaugh. Consider for a moment that the nominee’s name is something other than Kavanaugh. We know that regardless of the name of the candidate who might have been chosen by President Trump to fill the vacancy of Justice Anthony Kennedy, it had already been announced that any nominee would be rejected.
Long before we knew the name of the nominee those opposed to President Trump had announced they would use every tactic available to oppose, and yes, destroy the reputation of every person on President Trump’s list. Yes, from the very outset, this handful of United States senators set out on a quest to destroy the independence of the third branch of government, the judiciary.
In the words of John Adams, "The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillfull administration of justice, that the judicial center ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that." This separation of powers has served our nation well for more than two-hundred and forty years. Yet, because of what can be described as petty politics, or better yet what can best be described as handful of United States senators intended on throwing a very public temper tantrum, the very future of our constitutional republic hangs in the balance.
In the end, if we could investigate the minds of those who have set out on this mission to destroy Judge Kavanaugh, we might discover that it is about much more than Roe v. Wade. Instead, it is perhaps a knowledge by these United States senators that the power to legislate from the bench and write into the body of the constitution rights which never appear in the words of the original document may soon end, especially if Judge Kavanaugh, a constitutional originalist, takes a seat on the Court.
In the days ahead, as we ponder the future of our constitutional republic, and the future of the third branch of government, and yes, the future of the independence of the United States Supreme Court, listen quietly to the words of Ronald Reagan when he said, “I believe with all my heart that standing up for America means standing up for God who has so blessed our land. We need God’s help to guide our nation through stormy seas. Be we can’t expect Him to protect America in a crisis if we just leave Him on a shelf in our day-to-day living.”
The times in which we live are stormy times. We need God now, more than ever. Even if we are willing to leave Him on the shelf in our day-today living, today we need to cry out for Him to protect our nation from the stormy seas which we face, and the stormy seas which Judge Kavanaugh and his family face in the days ahead.
So, as I often do, I would ask each of you to join me on my imaginary mountaintop and this time help me shout loudly to God in the hopes that it is not too late for God’s people to “…humble themselves and pray and seek [God’s] face and turn from [our] wicked ways, then [God] will hear from heaven, and [God] will forgive [our] sin and [God] will heal [our] land.” 2 Chronicles 7:14 (NIV, paraphrased). Let’s just hope that it is not too late and that God is listening.
Mark Wohlander, a former FBI agent and federal prosecutor, practices law in Lexington, Kentucky.
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