On Political Uses of Clock and Calendar: Broader Implications of Republicans’ Tactics in the Kavanaugh Hearings Making decisions for the society of a democratic republic requires representatives to hear and consider citizens’ preferences. It would be an oversimplification to say that democratic governance must reflect the preferences of the majority of citizens, but it is clear that concerted efforts to exclude or ignore the will of the majority are not only undemocratic but an affront to the meaning of democracy. The legitimacy of decisions made without listening to – not necessarily following – citizens’ expressions of their preferences is tainted, as is the legitimacy of the institutions through which decisions are made and implemented.
The disenfranchisement of millions of people – minorities, the poor, the ostracized – most of whom, based on their demographic characteristics, can be presumed to share such progressive values as civic equality, economic justice and political inclusion, is a manifestation of a strategy of exclusion. Gerrymandering, purging voter lists, denying the vote to those who have served their prison sentences, and challenging the status of naturalized citizens are some of the tactics used over the past several decades to frustrate expression through the ballot.
It seems appropriate to view the Kavanaugh hearings as fresh tactics in the service of such a strategy. They feature an addition to that tool chest: artificially and arbitrarily mandated time limits. Converting the Senate’s constitutional responsibility to “advise and consent” in the appointment of a justice to the Supreme Court – the ultimate institution for safeguarding citizens’ rights – into an unnecessarily rushed, time-constrained one-party exercise also makes for bad policy, since it is likely to erode the legitimacy of the Court.
Political use of the clock and the calendar is ubiquitous and certainly not new, and it is not necessarily nefarious. Time limits or deadlines for policymaking as well as for citizen action are inherent in the operation of modern institutions, including those of government. (An excellent new study of political uses of clock and calendar time is Elizabeth F. Cohen’s The Political Value of Time: Citizenship, Democracy, and Justice [Cambridge University Press, 2018].) Rules regarding duration can be catalysts for reaching important goals and sometimes to prod political actors to make compromises necessary to meet deadlines. The early history of the European Economic Community (EEC – the European Union’s first incarnation) provides instructive examples. In its formative years, the EEC’s policymaking processes were punctuated by dramatic “marathon” negotiations among the highest level representatives of the (six original) member-states. They produced important results, particularly in the development of a common agricultural policy, overcoming the resistance of vested interests in each country’s agricultural sector and the foot-dragging of their political champions . The importance of such deadlines in the 1960s was emphasized in my interviews with several members of the EEC’s executive commission. The Commission’s Dutch vice-president (later president) and chair of the agriculture sector, Sicco Mansholt, a farmer himself, was fond of telling one and all that the key resource for reaching satisfactory compromises in such marathon negotiations was “a strong bladder“ – who could sit for a long time without having to leave the room. His Belgian counterpart, Jean Rey, compared commissioners working with a fixed time limit to the jurors in the classic 1957 film, “Twelve Angry Men,” in which members of a jury panel eventually reached agreement, through reasoned argument leavened by a desire “to wrap it up.” Sometimes the clock was literally stopped during the deliberations of the EEC Commission, to allow time to bring a promising discussion to fruitful conclusion.
But the (bare) Republican majority in the Senate did not impose stringent, unnecessary and entirely arbitrary time limits on the hearings, or on the FBI investigation of allegations against Judge Kavanaugh, or the holding of a vote by the full Senate for the purpose of finding a compromise between supporters and opponents of the nomination. While nearly two centuries ago Alexis de Tocqueville noted the tensions between the need to act with speed and secrecy in foreign affairs, on the one hand, and democratic consultation of the citizenry on the other, no such need exists in the Senate’s discharge of its constitutional duty to “advise and consent” in the making of an appointment to the Supreme Court. The aim of the deadlines for all three elements of the process is to insulate probable supporters of the nomination from their constituents’ reactions to the affecting testimony of Dr. Christine Blasey Ford and Judge Kavanaugh’s contentious, at times aggressive, sometimes blatantly partisan and often obfuscating presentation – and thus to keep them from “defecting” from the Republicans’ mandated position. The attempt to take the nomination to the floor hours after a party-line 11 to 10 vote late on Thursday on Friday morning was meant to insulate the senators from their constituents – to have the Senate vote without giving its less firmly committed members – an opportunity to go home for the weekend and perhaps be influenced by the reactions they encountered.
The time-frame and the Republican leadership’s calculus were disrupted by a dramatic “confrontation in the elevator door” between Senator Jeff Flake and Ana Maria Archila and Maria Gallager, two remarkably courageous women, who bravely and effectively challenged Flake to acknowledge the price victims of sexual assault pay. The impression that adherence to the Republican-driven schedule would send a message to actual and victims of assault that the party simply did not care about them helped Flake, encouraged by a very small number of fellow senators, to ask for a pause in the confirmation process. The Senate vote was thus delayed not by a weekend but by a week, and the FBI investigation Republicans sought to avoid under cover of the artificial time constraints is occurring. Recasting the timeframe provides at least a limited opportunity for voters to formulate their views on Judge Kavanaugh’s fitness for a lifetime appointment to the Supreme Court on the basis of more information and reflection, and to communicate those views to their elected representatives.
The effort to restrict information and time for reflection is indicative of nothing less than a fear that voters’ preferences might actually influence a very significant decision. It is but another means for sidelining or ignoring the expression of concerns of a substantial number of citizens. Suppressing voice is a form of suppressing voters. It has permitted what has become a “natural minority” to occupy positions of decision-making. The fear of those whose voices are stifled that, should Kavanaugh be seated, the chances for perpetuating minority rule would be greatly increased is warranted.