Photo Source Phil Roeder | CC BY 2.0
The Senate hearings on the nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court was a political charade. Everyone knows that the fix is in. The Republicans control the Senate and, like the earlier appointment of Neil Gorsuch, will push Kavanaugh’s nomination through unless some yet-undisclosed serious scandal is revealed.
The hearings were enacted like the staging of a performance of the theatre of the absurd. Both Republican and Democratic Senators played their respective parts with Broadway-like perfection, with Senator Cory Booker (D-NJ) likely to win a Tony Award.
One issue at the heart of the political minuet is the doctrine of stare decisis, which means “to stand by things decided.” In short, it is the notion of “settled law,” the legal fiction that a prior Supreme Court decision sets precedent and that it rarely overturns the prior decision and, if so, only for compelling reasons.
One of the most recent and consequential reversals in Court “settled law” doctrine occurred in 2003 when it decided, in Lawrence v. Texas, to reverse Bowers v. Hardwick (1986), thus invalidating state sodomy laws and making same-sex sexual activity legal.
At the Kavanaugh hearings the principle example of “settled law” was the Court’s 1973 decision, Roe v. Wade, that granted a woman the right to personal privacy with regard to her pregnancy. In all likelihood, Kavanaugh…