The likely confirmation of Judge Brett Kavanaugh to the Supreme Court will be yet another blow to the Court’s legitimacy, at a time when our democratic institutions are already under intense strain.
This is not because Kavanaugh is a dyed-in-the-wool conservative (which he is) or yet another justice handpicked by the Federalist Society and its Machiavellian boss, Leonard Leo (which he also is). Presidents pick Supreme Court justices, and the Senate confirms them—and when, in this case, both offices are controlled by conservatives, a rightward tilt is a feature, not a bug.
If liberals had really cared about reproductive rights, LGBT equality, voting rights, etc., they would have supported Trump’s opponent more fervently, instead of ranking the Supreme Court near the bottom of their priorities, as reflected in 2016 polling. (The Christian Right, of course, placed it near the top.)
Nor is the issue Kavanaugh’s temperament, conduct, qualifications, or intelligence, all of which are, by all accounts, superlative. Brett Kavanaugh is not Clarence Thomas.
Rather, the Kavanaugh confirmation threatens the Court’s legitimacy for three reasons: Russia, Roe, and—as was pointed out repeatedly during the first day of confirmation hearings on Tuesday—the redaction of his records.
First, Donald Trump is not an ordinary sitting president; he is an unindicted co-conspirator in numerous federal crimes. He has lied, repeatedly, about matters ranging from the utmost national importance to whether he paid hush money to a porn star. And there is already enough evidence in the public record to warrant his impeachment on the basis of obstruction of justice, and a single deposition will likely generate more than enough evidence for perjury.
To say the Kavanaugh nomination is taking place under a shadow is a vast understatement. Not only is the legitimacy of Trump’s presidency in doubt, but the Supreme Court may well hear cases related to the Russia imbroglio. At the very least, Justice Kavanaugh should recuse himself from such cases—though, in all likelihood, he will evade that question when asked, saying that he can’t comment on hypothetical situations.
But the truth is, it’s not clear if this confirmation process should be happening at all. Suppose Trump is impeached next year, by a Democratic Congress in possession of damning evidence of high crimes and misdemeanors. Suppose it turns out that his campaign not only benefited from Russian interference, but actively sought it— again, something we already know in regard to the infamous Trump Tower meeting, which Donald Trump, Jr., attended. Suppose Trump is removed from office, and it is determined beyond a reasonable doubt that he cheated in the 2016 election with the help of a foreign adversary.
What then of Justice Kavanaugh’s legitimacy? He would be a man put in place by someone who was colloquially, if not legally, a traitor.
At least with Justice Neil Gorsuch, we did not know then what we know now. The president’s lawyer had not confirmed that he is a liar. The president’s campaign manager was not headed to jail. Liberals may despise Justice Gorsuch’s ideological extremism, and he may forever be associated with the unprecedented stonewalling of Judge Merrick Garland. But the Court’s legitimacy was not, itself, tainted.
The second factor that makes the Kavanaugh nomination uniquely troubling is Roe. Not Kavanaugh’s position about the case, which is abundantly clear: he has called the decision “freewheeling judicial activism” and has tried to limit it in his own jurisprudence. That, again, is part of the constitutional-political process, and, once again, if preserving abortion rights were as important to the Left as restricting them was to the Right, progressives would have voted accordingly in 2016.
But when Roe is overturned—as it almost certainly will be—the myth that the Supreme Court is above politics will die with it. Justices Kavanaugh and Gorsuch were put into place in order to fulfill a campaign promise to make Roe “history.” And while each can lip-sync the magic words, such as “respect precedent,” “apply the law fairly,” and “interpret the constitution according to its plain meaning,” anyone who follows these matters knows that it’s all a charade. Kavanaugh is there to overturn Roe v. Wade and please the Christian Right.
Think about it: if you really believed, as a matter of religious conviction, that 652,000 babies were being murdered every year, wouldn’t you adopt whatever theory of constitutional interpretation, whatever legal jurisprudence, to stop it.
You’d certainly vote for any presidential candidate. Liberals call Christians hypocrites for voting for Donald Trump. I call them believers. Who cares about some affairs, some racism, and some vulgarity when 652,000 babies a year are being killed?
Of course, around 75 percent of Americans don’t believe this. They think that a first-trimester fetus isn’t quite a person, that people can sincerely disagree about it, that women have the right to decide what happens to their own bodies, and that, as such, abortion should be legal, albeit restricted. And 71 percent of Americans want Roe v. Wade to stand.
But their beliefs are a victim of the structure of the Senate, which disproportionately represents rural, white voters in small states. That makeup means that everything else the Supreme Court does is being subordinated to this one political issue. It also means that Kavanaugh can have the support of the majority of the chamber while being disliked by the country—he has an abysmal 37 percent approval rating; only 28 percent among women.
And unlike Gorsuch, Justice Kavanaugh replaces a swing vote on the issue of abortion with a hard-core right-wing vote. The decision overturning Roe will be announced in terms of constitutional law, but the emperor will not be wearing any clothes. Or robes.
Finally, the Kavanaugh confirmation is taking place under a cloud of unprecedented secrecy. As we reported three weeks ago, Kavanaugh’s records of his time in the Bush White House were being redacted by his own former deputy, whose client is President George W. Bush, not the American people. This is a huge conflict of interest, and casts into doubt the entire confirmation process.
And now we have learned that the White House has withheld over 100,000 pages of those records, claiming executive privilege and national security.
While those claims are likely true for some of the documents, surely it’s reasonable to wonder whether it’s true for 100,000 pages of them. After all, the documents that have been released tell us almost nothing about the most controversial and relevant issues from Kavanaugh’s tenure: torture, the firing of U.S. attorneys, executive power, and numerous other topics. These are the most important issues relevant to a Supreme Court confirmation hearings, and they are nowhere to be found in the documents that have been redacted for release. That is an outrage. It runs directly contrary to the constitution’s demand that the Senate provide “advice and consent” to judicial nominees. It is anti-democratic in the extreme.
When you add these three factors together, you get a nomination that is illegitimate, nakedly political, and un-democratic, even if the nominee is highly qualified.
And not to state the obvious, it comes at a uniquely inopportune time. No president of the United States (even including Jefferson and Jackson) has ever disparaged courts, the rule of law, and the federal judiciary the way that Donald Trump has. No president (even including Nixon and Johnson) has ever flouted the emoluments clause so brazenly. And no president since the Civil War has ever attacked entire nationalities and religions the way this one has.
If there were ever a time we needed a strong, independent Supreme Court, this is it.
Yet so far, the record is mixed at best. Already, the Supreme Court has rubber-stamped one of the administration’s most egregious insults to the constitution, the Muslim Ban repackaged as a Travel Ban, declining to look beneath the lipstick the Justice Department painted on Trump’s pig. And they’ve gone along with the administration’s union-busting, voter suppression, and religious pandering.
However Justice Kavanaugh’s decisions affect this trend, his very presence on the Court will undermine its status as independent arbiter of the rule of law. He will be there for all the wrong reasons, put there by a leader under a cloud, and confirmed without adequate review of his record. The lasting damage of his confirmation will not just be measured in the decisions he writes, but also in the de-legitimization of the Court upon which he sits.