The re-emergence of the my-way-or-the-highway radical left that has been more or less hibernating since the 1960s revolutionary Days of Rage is hell-bent on overthrowing conservative Republican government at the polls if they can, but from the streets is they must. As part of the authoritarian wing of the political continuum, they believe in an entitlement to power and small-d democratic institutions and traditions are great if they serve their purposes and expendable if they do not.
We saw their disgraceful efforts to block the inauguration of the duly elected President. We heard their calls for impeachment even before Donald Trump took office. The #NeverTrump Resistance Movement was never about a battle over policies, but an effort to nullify the 2016 election. And that remains the objective of many of those radical left-wingers which the Democratic Party put into office.
After one of the most brutal confirmation hearings in American history, Judge Brett Kavanaugh was finally confirmed as the 114th justice of the Supreme Court. That should have settled the issue, but nothing is ever settled when the left gets defeated. Waiting for the next election is not built into their political genetics.
Though the hearings established nothing that would have precluded Kavanaugh’s confirmation other than dubious shameful rumors, evidence-challenged testimony and even false testimony, the left will not let the issue rest.
As with Trump, Kavanaugh had not yet taken his oath of office when the radicals started chanting impeachment based on nothing other than more the slander that had characterized the hearings and failed to block the confirmation. The call for Kavanaugh’s impeachment still echoes through the ranks of the bitterly angry politically malcontents.
Recognizing that impeaching Kavanaugh is virtually an impossibility, the left has come up with other schemes to circumvent the constitutional process and established procedures. Just as they went far afield in first trying to get presidential electors to violate their duty by not voting for Trump, and then attempting to have Congress simply refuse to allow the inauguration to go forward, the obsessed left-wingers are now ginning up a few very bizarre schemes to remove Kavanaugh from the bench without having to go through the pesky and likely unsuccessful process of impeachment.
The one devious plan would require a compliant President – arguably a Democrat. It would also require the Democrats to have control of the Senate. The fact that neither of these prerequisites currently exists – and will not for at least the next two years — does not stop the left from proffering fantasy scenarios.
Here is how the nutty idea works according to the nutcases. The President appoints Kavanaugh to fill a vacancy on a lower court – maybe even the D.C. Court of Appeals from whence he came. The Senate then confirms that appointment and, they believe, Kavanaugh is therefore automatically demoted and there is a seat available on the Court for that Democrat President to nominate a replacement.
This is not only a nutty idea, it is downright dangerous. There is a reason – and a good one – why the Founders provided lifetime appointments to the federal judiciary. Where the radical’s radical idea comes into play, every new President could literally clear the court and appoint all new justices – if he or she had a compliant Senate.
They cite the case of Stuart V. Laird. That involved the appointment of 16 new federal judges to 16 new positions by outgoing President John Adams. Upon taking over, Thomas Jefferson abolished all the positions. The Court seemingly upheld Jefferson’s secondary argument that judges could be compelled to serve as Appellate Judges against their will. Using this dubious example, the Kavanaugh haters believe that he would have to serve on the Appellate Court even if he did not wish to do so. Of course, the whole thing is nonsense.
In the second proposal, Congress would create, by a simple majority, a panel of judges to determine a “good behavior standard” for judges. This panel of jurists would then be empowered to decide if any judge fell short of good behavior – in which case, they would be removed from the bench by a presidential signature.
Supporters of this lunacy argue that judges charged with criminal felonies are removed from hearing cases although they retain their seat and salary until the issue is resolved. Of course, a charge of criminality is quite easy to define, but “good behavior” would open the process to arbitrary definition chaos.
Those who see merit in such processes note that the procedure can be found in English law of the 1700s, in the colonial constitutions of New York, South Carolina and Massachusetts, and was used by the Continental Congress in establishing laws for the Northwest Territories. That fact that all of these findings were before the 1789 ratification of the U.S. Constitution – which has no such provision – renders them meaningless.
One of the people arguing in favor of these longshot ideas is Aziz Huq, a professor of law at the University of Chicago. He actually believes that the latter option would be a great improvement to our constitutional system.
I am certainly not one to take lightly or disrespectfully the thoughts of a law professor at the University of Chicago – where President Obama taught constitutional law before he was slapped down by the Supreme Court for a few abuses of constitutional powers as President. But, Huq is in an environment where academic theories and abstract ideas can trump reality. It is what they do. The entire consideration of these two ridiculous options seems nothing more than “academic masturbation.”
Though the left is chaffing at the bit to bring down Kavanaugh, it is not likely to happen – and that is good news for Kavanaugh, the Supreme Court and the Republic.
So, there ’tis.