Judge Brett Kavanaugh’s 50-to-48 Senate confirmation vote to be a justice on the Supreme Court is the tiniest majority in nearly 140 years since Justice Stanley Matthew’s razor-thin 24-to-23 confirmation in 1881. Thereby hangs a portentous tale of how radicalized and poisonous our politics has become.
Judge Kavanaugh attracted but one Democratic vote. He lost but one Republican vote. His partisan confirmation was the flip side of the 2010 Affordable Care Act, which passed Congress without a single Republican vote. In both cases, a narrow partisan majority steamrollered the minority on a matter of high controversy.
In neither case was the letter of the Constitution transgressed. But as Saint Paul sermonized in 2 Corinthians 3:6: “[T]he letter killeth, but the spirit giveth life.” Thomas Jefferson sagely advised that “great innovations should not be forced on a slender majority.” His first inaugural address elaborated: “All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”
In other words, if majorities neglect to exercise prudence or restraint, the Constitution will crumble.
A congressional majority could destroy the entire independent federal judiciary, including the Supreme Court. It could abolish every federal district court and court of appeals, which Article III, Section 1 of the Constitution makes discretionary with Congress. The Supreme Court itself upheld the abolition of the federal judgeships created by the Midnight Judges Act of 1801 in Stuart v. Laird (1803).
Article III does not prescribe the size of the Supreme Court; Congress does. For decades, the number of justices fluctuated between six and 10, before coming to rest at nine in 1869. But a congressional majority could eliminate all but one justice to cripple the Supreme Court’s review of constitutional questions decided by 50 state judiciaries. Congress could further emasculate the Court by curtailing its appellate jurisdiction under Article III, Section 2, Clause 2 to cases in which the amount in controversy exceeds $100 million.
The president could de facto abolish or paralyze departments or agencies created by Congress by declining indefinitely to nominate principal officers necessary for their operations and firing incumbent officials. The Appointments Clause of Article II, Section 2 does not compel the president to fill vacancies within any timeframe.
Congress, on the other hand, could handcuff the president. It could refuse to appropriate money to pay White House staff or other executive branch officers. The power of the purse is to Congress what Excalibur was to King Arthur. Article I, Section 9, Clause 7 stipulates that “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.”
The majority in Congress could reduce the minority to inaudibility. It could refuse to appropriate money for minority staff and minority membership on congressional committees, and exclude them from congressional hearings.
Article IV, Section 4 provides: “The United States shall guarantee to every State…a Republican form of government.” A congressional majority could wield Section 4 as a pretext for ousting state governments controlled by an opposing political party. The Supreme Court held that the Section 4 guarantee raised a non-justiciable political question within the exclusive domain of Congress in Pacific States Telephone and Telegraph Co. v. Oregon (1912).
In sum, constant lurches from one political extreme to another with slender majorities could cause the Constitution to shatter. Partisan animosities will be excited and shake our constitutional foundations.
Blessed are the moderates, for they are the cornerstones of domestic tranquility and civilization. Americans should speak, act, and vote accordingly.
Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.