A Partisan Threat to the Legitimacy of the Supreme Court

When Christine Blasey Ford’s allegations of sexual assault became public, Brett Kavanaugh went on Fox News to defend himself. Now, as we await a vote in the Senate on his confirmation to the Supreme Court, Kavanaugh went to the editorial pages of the Wall Street Journal to claim that he would be an independent and impartial judge.

I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all my daughters…

I revere the Constitution. I believe that an independent and impartial judiciary is essential to our constitutional republic. If confirmed by the Senate to serve on the Supreme Court, I will keep an open mind in every case and always strive to preserve the Constitution of the United States and the American rule of law.

The reason Kavanaugh wanted to issue a kind of non-apology apology for his behavior last week in front of the Senate Judiciary committee is because he went off the rails in a partisan rant, ending in a not-so-veiled threat.

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and 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 outside left-wing opposition groups.

This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades. This grotesque and coordinated character assassination will dissuade confident and good people of all political persuasions from serving our country. And as we all know in the United States political system of the early 2000s, what goes around comes around.

Kavanaugh’s latest attempt to redeem himself rings hollow because those remarks were not off-the-cuff in response to questioning from members of the committee. They were part of his prepared remarks.

Over the years it has become commonplace to indicate a judge’s political leanings by referring to the president who nominated them to their position. During yesterday’s press conference on the Kavanaugh confirmation process, Senator Orrin Hatch said the quiet part out loud.

While no one has ever made any secret of the fact that justices on the Supreme Court can be described as liberal or conservative, there has at least been an attempt to avoid partisan references. That is because the legitimacy of the Supreme Court rests on it being viewed as a deliberative body rather than yet another arena for partisan power plays.

It was during the confirmation process of Trump’s last Supreme Court nominee Neil Gorsuch that McConnell invoked the so-called “nuclear option,” which eliminated the filibuster and allowed him to be confirmed by a simple majority. Gorsuch received only three votes from Democrats—Manchin, Heitkamp and Donnelly.

If Kavanaugh is confirmed over the next few days, it will be a straight party-line vote with the possible exception of Manchin, who hasn’t announced his position yet, but was a “yes” on the procedural vote Friday morning. While the vote to confirm Clarence Thomas was similar (52-48) it was slightly less partisan, with eleven Democrats voting in favor of his confirmation and two Republicans against.

Beyond the actual votes, Brendan Nyhan points out how all of this continues to erode the legitimacy of the Supreme Court.

Trump famously lost the popular vote. In addition, because each state gets two votes in the Senate regardless of population, the confirmation process overweighs the views of voters in small states, where Republicans tend to dominate. As a result, when the Senate confirms Kavanaugh with support from every Republican present plus one Democrat (which futures markets consider the most likely outcome), a majority of Americans will have had their Senate representatives oppose both Trump nominees.

Let’s be clear: that is not something that is of concern to Trump and McConnell, who shamelessly prioritize short-term power plays over a long-term threat to the legitimacy of the Supreme Court. Nevertheless, that’s where we’re headed. It is just one more way that Republicans are eroding our democratic institutions, which is part and parcel with other strategies that are aimed to extend their power, even as they find themselves in the minority. As Zachary Roth described it in his book, The Great Suppression, their calculation is that “being outnumbered doesn’t have to mean losing.”

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.