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Brett Kavanaugh crossed a partisan line and the Supreme Court may never recover

“To go so nakedly political is a significant step beyond where we have been before”​

by Carter Sherman
Sep 30 2018, 1:47pm

It was Sen. Lindsey Graham who said the one thing Friday everyone can agree with. “There’s the process before Kavanaugh,” the South Carolina Republican told the Senate Judiciary Committee. “And the process after Kavanaugh.”

After three women accused Brett Kavanaugh of sexual misconduct and eight-plus hours of testimony from both Kavanaugh and his accuser Christine Blasey Ford, and one shocking last-minute flip from Arizona Sen. Jeff Flake, the Trump White House agreed Friday to launch a limited FBI investigation into the matter.

But regardless of what the FBI investigation ultimately uncovers, Kavanaugh’s decision to engage in overt partisan brawling — to berate Democrats and declare himself the victim of political revenge plot that dates back Bill Clinton — struck many experts as crossing a line from which the Supreme Court, should Kavanaugh be appointed, may not be able to recover.

“With Kavanaugh’s decision to kind of fight back on explicit partisan grounds, one consequence of that is it just drags the Supreme Court right into the center of a bitter partisan feud,” said Jens David Ohlin, a vice dean and law professor at Cornell Law School. “And that’s not going to be good for the Supreme Court at all.”

Read: Trump agreed to re-open Brett Kavanaugh's background check

When Kavanaugh took a seat Friday before the Senate Judiciary Committee, he immediately launched into a sometimes teary, sometimes furious tirade against the sexual abuse allegations he categorically denies. The outraged performance was a calculation not unlike the “high-tech lynching” now-Justice Clarence Thomas decried in 1991. But then Kavanaugh went further, as if playing to his own conservative political base of voters:

This whole two-week effort has been a calculated and orchestrated political hit, fuelled by pent-up anger about President Trump from the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from left-wing opposition groups. The consequences will extend long past my nomination.

Experts said that partisanship in that response, and the way he treated questioning by female Democratic senators on the dais, would be unbecoming of any judicial post let alone the highest court in the land.

“To go so nakedly political, I think, is a significant step beyond where we have been before”

“Not only was he visibly angry and showing a poor judicial temperament, but he was also aligning himself with partisan politics, which a judge should never do because it undermines his impartiality as a judge,” said Barbara McQuade, who served as the U.S. attorney for the Eastern District of Michigan under the Obama administration. “To go so nakedly political, I think, is a significant step beyond where we have been before.”

That could have real consequences down the road when the Court is asked to step in on politically-charged cases of all types in the future.

Read: Watch the women of the Kavanaugh hearings actually acting like adults

“It’s pretty hard to see how a judge who says those things could maintain the appearance of impartiality on a case that involves the Democratic Party, like some of the hyper-partisan redistricting cases,” added David Super, a Georgetown Law professor who studies constitutional law, suggesting that a Justice Kavanaugh may need to recuse himself from such a case.

While Justice Thomas came out swinging in 1991, and, like Kavanaugh called the whole preceding a “circus,” Super says Kavanaugh went further. “There were some lines Justice Thomas chose not to cross, that Judge Kavanaugh did, particularly in terms of partisanship,” he said.

Kavanaugh’s speech also arrived in a time of unprecedented political divides among Americans, even when it comes to the judicial branch (whose independence Kavanaugh emphasized over and over again in his initial confirmation hearings). Over the past two decades, belief in the Court has increasingly split along party lines: Americans tend to trust the Supreme Court’s jurisprudence when their favored political party is in the White House, according to Gallup polling. The number of Democrats who say they place high confidence in the Court plunged 10 points in 2018 alone; by contrast, Republicans’ confidence is up 15 points.

Read: "My heart hurts so much for her"

Overall, just 37 percent of Americans told Gallup this year that they have "a great deal" or "quite a lot" of confidence in the nation’s highest court. Historically, an average of 44 percent of Americans say they have at least a lot of confidence in it. Just 11 percent of Americans said this year they have a lot of confidence in Congress.

The Supreme Court has, of course, gotten dragged into “political morass,” as Ohlin called it, several times over the centuries. The modern Court was perhaps most overtly political in 2000, when it stepped in to end a recount in Florida that handed George W. Bush the presidency. Like Trump, Bush had lost the popular vote.

That decision prompted the liberal-leaning Justice John Paul Stevens to conclude in his opinion on the case, “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

“Over the last 50 years, we’ve increasingly turned the court into a second legislative branch,” said Paul Rosenzweig, a senior fellow at the R Street Institute. Rosenzweig was once a senior counsel for the Ken Starr investigation into former President Bill Clinton, which Kavanaugh also worked for. Rosenzweig said he’s known Kavanaugh for decades. “We hope that most of the issues, the way they resolve it, they’re trying to do so neutrally and without reference to politics and partisanship. And increasingly it seems like it’s just power: Who’s got five votes? And that’s it. And it doesn’t matter right or wrong or lawful or unlawful or constitutional or unconstitutional.”

Rosenzweig, who declined to comment directly on Kavanaugh, pinned the blame for the devastating partisanship on the senators. “The process is not one that makes America proud or leaves anybody happy or reflects well on the Senate or the Court, which is damaged by this as well,” he said.

“I think that there’s some truth to the idea that the Democrats were going to try and defeat Kavanaugh no matter what,” Rosenzweig said. “It’s been partisan since the moment he was nominated. I think it got much worse yesterday, and that’s just deeply unfortunate.”

Cover: Brett Kavanaugh, U.S. Supreme Court associate justice nominee for U.S. President Donald Trump, speaks during a Senate Judiciary Committee hearing in Washington, D.C., U.S., on Thursday, Sept. 27, 2018. (Photographer: Andrew Harnik/Pool via Bloomberg)