The polarizing battle over Supreme Court Justice Brett Kavanaugh has ended, but voter repercussions could be coming soon.
Contempt, grievance and dishonesty give Trump and Republicans an ugly Kavanaugh win. It’s the worst blow to the Supreme Court since Bush v. Gore.
The confirmation of Brett Kavanaugh, after a bitter fortnight of operatic intensity, is the most damaging blow to the Supreme Court since it decided a presidential election with Bush v. Gore, and the most serious assault on the court by another branch of government since at least Franklin D. Roosevelt’s court-packing plan. Now what?
The episode was a vivid display of a broken process driven by ward-boss power politics. Senate Republicans employed a razor-thin majority (representing a minority of Americans) to create new rules and game the system at every turn — starting with their refusal, on the principle of “because we say so,” to provide the great bulk of Kavanaugh’s government records. Once Christine Blasey Ford emerged to credibly accuse Kavanaugh of sexual assault when they were teens, Republicans excluded important witnesses and by design turned a final hearing into a he-said she-said standoff.
Among the indelible images of that standoff were 11 sclerotic, white, Republican males hiding behind their hand-picked prosecutor as she served up picayune questions to Ford, and Kavanaugh’s face as he unleashed a torrent of bared-teeth partisanship. His features contorted in rage, he lashed out against enemies old and new, from Democratic senators to the Clintons. Sen. Lindsay Graham then stoked the fires, calling Democrats’s handling of Ford’s claims an “unethical sham” and “the most despicable thing I have seen in my time in politics.”
Grievance politics and winning ugly
Thus, his confirmation imperiled, Kavanaugh and Graham went all in on the politics of contempt, grievance, and dishonesty — in short, the politics of Donald Trump. The confirmation, and the dismal way it was achieved, represent his greatest triumph as president, and the ultimate in winning ugly.
The nadir came when the White House and Republican leadership feigned a reopened investigation only to ensure it went nowhere. It was cynical and corrupt, and abetted by the signature Trump touch of a bald lie asserting that the FBI had not been limited. I have worked with the FBI for many years both in vetting judges and in prosecuting criminals. The straitjacketed FBI investigation with no followup, no branching out to other witnesses, no interview of the protagonists, no acceptance of even volunteered information, was a partisan farce.
Where does all this leave Kavanaugh and the Supreme Court?
Kavanaugh accused his and Trump’s political enemies of destroying “my family and my good name,” and in truth he did absorb terrible damage. Polls show more Americans believe Dr. Ford than Kavanaugh. (The opposite was true of Clarence Thomas and Anita Hill.). And the rawness and unfairness of the process geometrically increase the resentment over his elevation.
The stigma may remain for as long as he serves. It is Kavanaugh’s misfortune that the dismal drama played out against a social moment in which, as Alaska Sen. Lisa Murkowski, the one Republican who voted against Kavanaugh, explained, “we are dealing with issues that are bigger than a nominee.” His public appearances will attract protests and controversy. He will continue to be reviled in the legal academy and in much of the profession. And should damning new details of his conduct or the nomination process come to light, as is likely, the political outrage at his confirmation will redouble.
Indeed, before he was even officially confirmed, the New York Times reported that the White House imposed the limits on the FBI because White House Counsel Don McGahn believed a bona fide investigation could be “disastrous” for Kavanaugh.
Justice Thomas has responded to public hostility with a smoldering sense of grievance and alienation. It will be an immense challenge for Kavanaugh not to do the same. Within the court itself, Kavanaugh will have an easier time. The justices place enormous value on collegiality. He is now their new brother, flaws and all, and whatever private opinions they may harbor, the justices will set them aside and bring him into the fold.
Trump’s poison touch now soils the court
The keenest tragedy of Kavanaugh’s sordid confirmation is its effect on the court itself. Its public credibility is everything; in a sense, it is all the court has, and it is gossamer. Justice Stephen Breyer referred to it as the “miracle” of national compliance with the court’s edicts, even in the wake of “controversial decisions” like Bush v. Gore. The American people accept the court’s decisions, particularly in close controversial cases, only to the extent they believe them the product of law, not politics.
Between Kavanaugh’s arch-partisan turn to gain confirmation and the raw political process that won it for him, the court’s legitimacy will now be sorely challenged, and through no act of its own. The court has no real way to replenish its institutional capital except to discharge its work honorably over time. But now every 5-4 decision in which Kavanaugh joins — and there will be a cascade of them — will seem to many more Americans illegitimate and politically driven, and that much harder to swallow. Given the extreme bitterness of the confirmation, it is hard to see that changing soon.
Trump has managed to insert himself, and his signature brand of contempt and malice, into the most important institution in American government that he had not yet soiled. We already knew that everything Trump touches becomes debased, putrescent. Now his poison touch has infected the Supreme Court, and its venomous effects on the court may persist long after his presidency, even perhaps for as long as his new 53-year-old justice serves.
Harry Litman, a former U.S. attorney and deputy assistant attorney general, teaches the Supreme Court as a Political Institution at UCLA Law School. Follow him on Twitter: @harrylitman
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