Prof. Kerry Hunter 

On Oct. 5, Supreme Court nominee Brett Kavanaugh cleared an important hurdle between him and the seat to which President Donald Trump had nominated him, when the Senate voted 49-51 to close debate on his nomination. Kavanaugh has cut a divisive figure. The multiple credible allegations of sexual misconduct have been made against him have caused conservatives to accuse liberals of running a smear campaign against their judicial pick, and liberals to cry foul over a nominee who doesn’t represent their values or politics.

According to College of Idaho political economics Prof. Kerry Hunter, the buzz over the nominee is a sign of rising tensions between camps that see their American identities not being born out by the news coming out Washington, D.C. Hunter, who has taught at C of I since 1988 and has written two books about the Constitution and the Supreme Court—The Role of the Supreme Court in American Political Culture: Preserving the Founding Myths (2006) and, most recently, Approaching the U.S. Constitution: Sacred Covenant or Plaything for Lawyers and Judges (2014, 2016)—told Boise Weekly he takes a longer view of the issue. Unable to enforce its own decisions, the Supreme Court is only as powerful as people's willingness to abide by its rulings. The integrity of the court, then, is tied to the integrity of how its justices are seated.

click to enlarge - U.S. Supreme Court nominee Brett Kavanaugh -  - PUBLIC DOMAIN
  • Public Domain
  • U.S. Supreme Court nominee Brett Kavanaugh
What does Kavanaugh’s nomination mean for the court?
There have been those who have made the comments that we’ve reached a new low, but hearings have always been relatively fraught with concern. I think it’s way too early to say if this is going to do any real damage to the court the way it’s perceived, but it might add to a tension. Obviously the Roe v. Wade decision galvanized a response that we’re seeing today with Kavanaugh.

If Kavanaugh is elevated to the Supreme Court, some people will see that as a win, and others will see that as a loss.
The appeal of the idea that’s represented by the phrase, “A government of law, not of men,” is powerful. It’s why we can get so caught up in it: We sense an existential threat in it, whether we’re liberals, progressives, conservatives or libertarians. Those who are critical of Kavanaugh are afraid he will manipulate the document in one way, and those who are in support of him believe he’s a person who will embrace the document as it’s meant to be understood, as a sacred covenant that’s inspiring respect for higher ideals. They’re trying to see past this latest hearing. You’re hearing his supporters defending his reputation, and they’re quite convinced he represents the proper understanding of “law not of man,” where his critics see it just the other way around.

What actually is at stake as we go through this confirmation process?
Most of our lives are affected by our state political leaders. In some ways the stakes are not as high as they would be at state level. Those that are afraid reproductive rights will disappear if Roe were to disappear are over-selling their concern if you live in a state where the reproductive right is maintained by state law, but I do believe that we feel our worldview is at stake. There are some [who are] very concerned that we’re telling our young men that what you did in college or high school really doesn’t matter. Some are saying he wasn’t guilty. That, too, goes to the heart of what are we about. We’re either embracing our highest ideal or the very worst that we could possibly do.

If we dial back the heat on national politics, doesn’t that make a disconnect between what it means to be an American and, say, an Idahoan?
I don’t think we can dial it back, because we do have both identities. What does it mean to be an American? Normally speaking, people are much more agitated, more likely to participate in a national election than a state election. Who we are as Americans may resonate more than the other question [of our identity].

You explored cultures where the judiciary doesn’t have the same kind of oversight capabilities. What insights has that offered you?
I spent time in New Zealand. Theirs is a society that doesn’t have a written constitution. They witnessed the degree to which the American Constitution has been manipulated through legal arguments, and they believe they can approach their ethical debates more effectively without empowering lawyers and judges in the way we have. And they’ve been capable in protecting minority rights: Gay rights were ahead of American by a good 20-30 years. The native Maori population has many more rights, you could argue, at least in terms of protecting treaty arrangements, than we have of Native American arrangements in this country. Women were given the right to vote much sooner than women were in the U.S. In some ways, our Constitution has been used by judges to slow down a movement toward protecting minority rights, and other times it’s been helpful as a way of speeding up minority rights. On the other hand, it has been said, “Oh, the law is the law, and there’s nothing we can do,” and that kind of thinking has been used to slow down the protection of minority rights.

click to enlarge Prof. Kerry Hunter - ADAM ESCHBACH/THE COLLEGE OF IDAHO
  • Adam Eschbach/The College of Idaho
  • Prof. Kerry Hunter
Does the Kiwi way of looking at law and society color how you observe the Kavanaugh nomination?
If you have a majority of white males decide we want to have affirmative action in education to make room for minority races or women, they’re doing that based on an ethical discussion among themselves. Then if the Supreme Court says, “Sorry, you can’t do that,” it ends up trumping the decisions of the legislature, which are doing their very best to be more inclusive. In New Zealand, they realized they’d been mistreating the Maori way too long, and there, there’s no way the court can stop that kind of debate. In a sense, the current Kavanaugh concern is what kind of a person are we going to have on the court. But let’s not go up on a balloon on this: As Alexander Hamilton once said, the court can’t enforce its decisions. It has no ability to enforce anything. Just like in Roe v. Wade, many people in many states continued to resist that ruling, and when the Supreme Court speaks, not everyone listens. I think it’s wise for us to step back and realize, the court is one player in a national dialogue.

What am I not asking?
I do worry somewhat that our politicians, members of the court and the media aren’t always being as wise as they should be in terms of helping to protect the integrity of the court, because it has the possibility to help us reach that idea of law, but we could cause harm to that institution. It’s important how we talk about the court. I think there are people who let the short-term court decision have way too much impact on how they talk, and we would do well to preserve the integrity of the court.

We’re talking about the Supreme Court making rulings that could have lasting, intergenerational impacts. What do you mean by "short-term decisions?"
The court can only use the power of persuasion to convince others to support their ruling. If you look at Brown v. Board of Education [racially segregated schools], most schools continued to operate their schools in that fashion. Eventually, President [Dwight] Eisenhower sent in the 101st Airborne Division to enforce the Supreme Court ruling. The Supreme Court can tell us what it thinks, and we as a people, whether it’s through our elected officials, will decide at the state and local level what respect we’re willing to grant the court. Yes, these things matter, but if it becomes clear that Kavanaugh is not going to be on the court, I don’t think the Republicans would be doing anybody any favors in saying the Democrats were doing a smear job. They need to say, “The process has worked and we’re going to get somebody else.” If Kavanaugh is put on the court, it would be wise for political leaders to say, “The process has worked.” I don’t know it will be good to say the process broke down.

What I’m hearing is, the power of the Supreme Court is fluid. Some people will adhere strictly to its rulings, and others will neglect those rulings. It’s how we support the myth of the Supreme Court that’s at the heart of politics.
Part of that is because the rulings themselves are not that cut and dried. They are for the two parties involved, yes, but there’s always a lot of wiggle room in any opinion, and legislators are going to work with that. We’re engaged in a broad dialogue that the court’s a part of, and we should not misrepresent the way the real power’s distributed.
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