In the absence of a direct meteor strike, Brett Kavanaugh is nearly certain to be the next associate justice of the Supreme Court of the United States.
Yes, he’ll have to suffer some formalities first, like sitting solemnly for a few days before the Senate Judiciary Committee, whose Republican leadership has fast-tracked his nomination and scheduled confirmation hearings to begin Tuesday.
There Judge Kavanaugh, President Trump’s second pick for the high court, will endure what Justice Elena Kagan once described as “a vapid and hollow charade” — days of tedious, predigested speeches by senators followed by carefully scripted questions, either softballs the nominee can hit out of the park or changeups he won’t bother to swing at.
He will be as cagey as possible about his judicial philosophy beyond the now-familiar bromides. He will promise to adhere to the Constitution (as it was understood in the founding era, anyway), respect the rule of law and honor Supreme Court precedent. He’ll be less keen to admit that, as a member of the court, he would be free to vote to throw out those precedents, as other members of the so-called conservative bloc are doing with increasing gusto these days.
Whatever Judge Kavanaugh says, all Republican senators are virtually sure to vote for him, and most, if not all, Democratic senators will vote against him. In the olden days — that is, before 2017 — this wouldn’t have been enough to turn Judge Kavanaugh into a justice. Republicans hold only a bare majority in the Senate, and it takes 60 votes to break a filibuster. But norms are for sissies. Republicans killed the filibuster for Supreme Court nominees last year, removing the last speed bump on the road to installing President Trump’s first pick, Neil Gorsuch, in a seat they had stolen from President Barack Obama the year before.
With all this room to run, Republicans aren’t even pretending to do their constitutional duty. Senator Chuck Grassley, who chairs the Judiciary Committee, is refusing to let his colleagues or the American people see millions of documents from Judge Kavanaugh’s time as White House staff secretary to President George W. Bush — a job he has called the most influential of his career in terms of his approach to judging. And in recent weeks, multiple senators have been personally helping the judge prepare by holding mock hearings.
This lock-step partisan behavior is a natural consequence of the increasing polarization of American politics, which is bad enough when it infects the elected branches. It’s far more damaging when it influences the makeup of the judiciary, whose legitimacy depends entirely on the public’s confidence that it can serve as an impartial arbiter of our most intractable disputes. Now, as a result of brazenly partisan maneuvering, the Supreme Court is on the cusp of having a solid right-wing majority that could last for decades.
Republicans are licking their chops. Out with squishes like Anthony Kennedy, the court’s last true swing justice, and in with reliable soldiers like Judge Kavanaugh, who is likely to provide the key fifth vote to reshape large portions of constitutional and statutory law in a deeply conservative mold. That means, for starters, making it harder for minorities to vote, for workers to bargain for better wages and conditions, for consumers to stand up to big business and for women to control what happens to their bodies. It also means making it easier for people to buy and sell weapons of mass killing, for lawmakers to green-light discrimination against gay, lesbian and transgender Americans, for industries to pollute the environment with impunity, and for the wealthy to purchase even more political influence than they already have.
Don’t forget that Judge Kavanaugh was nominated by a president whose campaign and administration are under federal criminal investigation. If confirmed, he will be in a position to rule on any case involving Mr. Trump or his associates, a disturbing scenario even before you consider his alarmingly permissive views on presidential power and authority.
One might reasonably ask, why even bother with confirmation hearings? Ideally, these hearings would inform senators and the American people about the men and women who are seeking an unelected, lifetime job on the nation’s highest court. But that would require a level of honesty on the part of both the senators and the nominees themselves.
At times, the process has worked. President Ronald Reagan’s failed nomination of Robert Bork is a good example. To his credit, Bork testified candidly about his constitutional vision. To the American people’s credit, they rejected that vision as regressive and extreme. Bork was voted down by the full Senate, and the vacancy was eventually filled by the far more centrist Anthony Kennedy.
Unfortunately, recent nominees by presidents of both parties have taken the wrong lesson from the Bork hearings, clamming up when asked even the most basic questions about their constitutional philosophy. As a result, the public learns almost nothing useful, and the confirmation vote becomes an exercise in blind political tribalism.
The biggest concern right now, however, is not that Republicans are ramming Judge Kavanaugh’s confirmation through without letting the public view his full record. Nor is it that he is a staunch conservative. Every president gets to choose nominees of his or her liking. It’s that Senate Republicans, in the culmination of a four-decade crusade of conservative activists, are attempting to weaponize the court itself as an instrument of partisan domination.
Democrats howl now, as they should, but they will likely return the favor as soon as they’re back in power, perhaps by trying to expand the size of the court.
This is a perilous moment for which there is no quick fix, but there are ideas worth considering. One, proposed by Geoffrey Stone, a constitutional law professor at the University of Chicago, is for the Judiciary Committee to agree that — at least for vacancies like the current one, which would tip the balance of the court — it will consider only nominees who have the approval of a majority of both Republicans and Democrats. A more drastic step would be to amend the Constitution to impose 18-year term limits on the justices, which would ensure that every president gets to name two justices per term.
Politics will always be a part of Supreme Court nominations, but if the court is going to retain the credibility it needs to function as a pillar of American democracy, both parties must find a way to put the nation’s long-term interest over their own.
